Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks

ORIGINAL PUBLISHED ON “EU IMMIGRATION AND ASYLUM LAW AND POLICY”

By Niovi Vavoula, Queen Mary, University of London

Since the past two decades, the exploitation of new technologies and the emphasis on collecting and exchanging information have been key aspects of the EU counter-terrorism strategy. An array of information exchange schemes have been developed on the basis of an intelligence-led approach, according to which the more data available, the more efficient the policies may be (for an overview of EU information exchange mechanisms see here).

The aim of the present blog post is to assess the role of the Schengen Information System (SIS) in the fight against the growing phenomenon of the “Foreign Fighters”. Landmarks in this context are, apart the terrorist events of 9/11 and the Madrid bombings in 2004, the recent attacks in Paris in January and November 2015 as well as in Brussels on 22 March 2016. It is demonstrated the extent to which the functionalities and the potential of the SIS have been slowly revisited in the wake of events with limited progress up to date. Despite the growing overreliance to this system has not been accompanied by proven effectiveness, the EU legislator calls for further exploitation of the database at the expense of fundamental rights and EU citizenship. The Commission proposal amending the Schengen Borders Code regarding the control of the crossing of external borders by foreign fighters should finally make the system effective but it could violate the principle of proportionality.

The SIS II in a nutshell

At the heart of the compensatory measures for the abolition of internal border controls, the SIS was established under the Schengen Convention and came into operation in 1995. Its overarching purpose was twofold; to maintain public order and security and to apply the provisions of the Convention relating to the movement of persons in the Schengen Area. On the criminal law side, it held basic alphanumeric data categorised in the form of ‘alerts’ on people or objects wanted for criminal law and policing purposes, such as persons wanted for arrest to be surrendered/extradited or missing persons. On the immigration law side, which in practice dominated the content of the database, it stored data on third-country nationals to be refused entry to the Schengen area. The system functioned on a hit / no hit basis, but it was supplemented by the SIRENE, which provided the infrastructure for exchanging additional information between national authorities.

Since April 2013, the SIS has been substituted by the SIS II so as to accommodate the new Member States after the enlargements of 2004 and 2007 and insert new functionalities. In this context, the current legal framework of the SIS II comprises of Regulation 1987/2006 involving the immigration functions of the system, Council Decision 2007/533/JHA regarding its use for policing and criminal law purposes and Regulation 1986/2006 concerning access by vehicle registration authorities. The overarching purpose of ensuring a high level of security remains the same, albeit worded more broadly.

First round: new functionalities of the SIS after 9/11 and Madrid bombings  Continue reading “Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks”

Dublin is dead ! Long live Dublin ! The 4 May 2016 proposal of the European Commission

Original published on CDRE Site on May 20th,2016

by Dr. Constantin Hruschka,

(Lecturer at the University of Bielefeld )

The Dublin system has been declared dead on numerous occasions over the past decade. It has proven to be highly dysfunctional from the beginning, as the allocation of responsibility did not have the intended effects (i.e. the prevention of “refugees in orbit” and of “asylum shopping”).

Nevertheless, Dublin procedures and Dublin transfers are still taking place and the system is still operating. It will continue as the Commission proposal released on 4 May 2016 is a change in the continuity rather than the reform necessary for a more workable and efficient system.

In its 2007 evaluation of the Dublin system, the EU Commission already described these effects and suggested a reform of the system, which then consisted of the Regulation (EC) No. 343/2003 (“Dublin-II-Regulation”) and the Regulation (EC) No. 2725/2000 (“Eurodac-Regulation”) as well as the related Implementing Regulations (Regulation (EC) No. 1560/2003 and Regulation (EC) No. 407/2002). The suggested reform was debated between 2008 and 2013 and led to the adoption of recast Regulations for Dublin (Regulation (EU) No. 604/2013(“Dublin-III-Regulation”)) and Eurodac (Regulation (EU) No. 603/2013) in 2013 and to changes to the Dublin Implementing Regulation (Regulation (EU) 118/2014). The main aims of the recast were to enhance the efficiency of the system and to provide for higher standards of protection for asylum seekers.

The practical challenges for the system remained obvious – ranging from the cooperation difficulties between the different Member States in the responsibility allocation procedures to practical questions on the implementation of transfers and the actual access of asylum seekers to procedures for international protection. Depending on the analysts’ perspective, the scapegoats for these apparent dysfunctions were either the Member States, the national administrations, the courts, the asylum seekers or the system as such.

Under the pressure of the so-called “migratory crisis” in 2015, the Commission launched on 4 May 2016 – as a first step of a full revision of the CEAS –  a recast Dublin Regulation (“Dublin IV”), a recast Eurodac-Regulation as well as a proposal for the establishing of a European Union Agency for Asylum. The latter two proposals are less relevant for the responsibility allocation mechanism as such as they would only be used as tools to enhance the efficiency of the whole CEAS in a broader migratory context and will therefore not be analysed in this blog entry. The latter aims at explaining and analysing the new proposals from a two-fold perspective that is derived from the aims of the 2013 recast: is the new proposal firstly likely to enhance efficiency and secondly, are the human rights obligations adhered to?

The Dublin IV proposal aims at preserving the Dublin system as “the cornerstone” of the CEAS. The proposed changes are supposed to :

  1. streamline the Dublin rules “to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States’ administrations to apply the system”;
  2. contribute to the prevention “of secondary movements within the EU, including by discouraging abuses and asylum shopping“;
  3. provide “for tools enabling sufficient responses to situations of disproportionate pressure on Member States’ asylum systems” through a “corrective allocation mechanism” that ensures a “high degree of solidarity and fair sharing of responsibility” among Member States.

The superordinate aim is to provide for a solid basis for a fair and sustainable EU asylum policy.

This blog entry explains and analyses why the new proposal is not likely to enhance practical efficiency of the system and to what extent it is incompatible with fundamental rights and general principles of Community as well as international law.

Streamlining the Dublin rules is bound to fail

The proposal identifies – in line with the communication of 6 April 2016 – the lack of streamlined Dublin rules and secondary movements as the main challenge for the Dublin system. Measures to streamline the rules and to prevent secondary movements therefore form a key part of the proposal. The variety of measures proposed range from mere deletions of obsolete or practically irrelevant provisions to very substantial changes. Examples of the former is the abolition of the illegal stay criterion (Article 13 (2) Dublin-III-Regulation) and the conciliation mechanism (Article 37 Dublin-III-Regulation). The latter are for e.g. the possibility to transfer beneficiaries of international protection under the Dublin rules (Article 18 (1)(e) of the proposal), the changes with regard to the time limits and the new rules for take back procedures (Article 21 of the proposal).

From a practical implementation perspective some proposed changes are bound to fail. This is especially true for the newly proposed “pre-Dublin procedure”. Article 3(3) of the proposal sets out an obligation for the Member State where the first application was lodged to examine the questions of whether there are reasons to conduct an inadmissibility or accelerated (based on) procedures  – as foreseen by the Asylum Procedures Directive – before carrying out the procedure for the determination of responsibility. These procedures shall be conducted if the safe third country, first country of asylum or safe country of origin rules may be applied, or if the applicant may, for serious reasons, be considered a danger to national security or public order. The Member State carrying out such a procedure also stays responsible for the asylum procedure (Article 3 (4) and (5) of the proposal). This consequence will hamper the practical relevance of the inadmissibility and accelerated procedures as Member States – as e.g. highlighted by the 2007 evaluation  – are generally reluctant to assume responsibility outside the order of the criteria.

Most of the proposed changes enter into the category of making it clear to the applicant “that the right to apply for international protection does not encompass any choice of the applicant which Member State shall be responsible for examining the application for international protection” (emphasis added). As a first step, the proposal foresees an obligation for the Member State conducting a Dublin procedure to inform the applicant about this setup of the system (Article 6 (1)(a) of the proposal).

Further administrative measures to this end are:

  • The abolition of the time limit of 12 months for the applicability of the illegal entry criterion (Article 15 of the proposal),
  • The introduction of “take back notifications” instead of “take back requests” (Article 26 of the proposal),
  • The abolition of the conditions for a “cessation of responsibility” that are currently contained in Article 19 Dublin-III-Regulation, and
  • The abolition of the binding nature of the time limits in take back procedures and of the time limit for the transfer (Articles 26 and 30 of the proposal).

Article 19 currently comprises a cessation responsibility if the asylum seeking person has either been provided with a residence document outside the asylum scheme or has departed for a certain period or after a return decision or removal order from the territory of the Member States. The changes to the time limits also comprise a significant shortening of the time limits for the procedural steps (Articles 21pp of the proposal).

These proposals essentially lead to a return to the situation of the Dublin Convention with shorter but non-binding time limits. One of the main reasons for the introduction of binding time limits was that the evaluation of the Dublin Convention brought to light that non-binding time limits in practice create “asylum-seekers in orbit” for longer periods of time. Moreover, the time limit for the lodging of take back requests was explicitly introduced by the Dublin-III-Regulation to further counter such situations. It is difficult to imagine that this problem of “asylum-seekers in orbit” will not be further enhanced with the return to a system of short and often non-binding time limits.

As a last but very important point the Commission intends to limit the scope for the application of the discretionary clauses for Member States (Article 19 of the proposal). It is suggested that the discretionary clauses should only be applicable as long as the responsibility determination procedure has not ended and that they should be limited to family reasons. The use of the clause for other humanitarian or cultural grounds shall no longer be possible. This limitation is problematic from different perspectives. From a humanitarian perspective it is foreseeable that the limitation of the scope for the discretionary clauses will also contribute to an increase in the number of “asylum-seekers in orbit.”

Preventing secondary movements by violating human rights

To some extent, the Commission proposal aims at countering the phenomenon of “asylum-seekers in orbit” by introducing an article on obligations of asylum seekers (Article 5 of the proposal) comprising:

  • The obligation of lodging an asylum application in the Member State of first entry,
  • The obligation to speedily provide all elements and information relevant for the Dublin procedure and
  • The obligation to comply with the transfer decision and to be present and available to the authorities in this regard.

Non-compliance shall be sanctioned: According to Article 6 of the proposal, the procedure shall be conducted far more quickly in these situations and the applicant shall “not be entitled to the reception conditions set out in Articles 14 to 19 of Directive 2013/33/EU, with the exception of emergency health care” during the Dublin procedure. Such limited access to social rights is incompatible with human rights standards as set out by the 1951 Convention, the ECHR and the CRC as well as by the Charter of Fundamental Rights. Moreover, the obligatory nature of this provision will also create difficult constitutional and human rights related problems in most Member States as a minimal access to social rights is often guaranteed by the Constitutions of Member States.

Also some of the further restrictions foreseen raise severe human rights issues. Inter alia, it is proposed to limit the scope of the right to appeal. It shall only be guaranteed for situations of systemic deficiencies and for family reasons (Article 28 of the proposal). This proposal was introduced despite the pending CJEU cases on some of the aspects of legality of these limitations to appeals (see e.g.Ghezelbash, Karim and Shiri). From a merely European Law perspective, it is hardly imaginable that the proposed limitation does not violate the standards set out by the jurisprudence since Van Gend and Loos. Additionally, the proposed more extensive use of Eurodac and the related enhanced obligations to collect and enter data in Eurodac (Articles 22 and 23 of the proposal) raise significant doubts regarding its compatibility with established data protection principles.

The Commission proposes the application of rules of the Dublin procedure to beneficiaries of international protection (Article 18 (1)(e) of the proposal). This proposal raises further human rights issues as the system is not designed to be applied to persons that actually have a right to reside in one of the Member States. From a Schengen perspective, the compatibility of this proposal with Article 6(2) of the Returns Directive is at least doubtful. Furthermore, such restrictions for beneficiaries of international protection are at least paradoxical in an area of free movement.

The proposal foresees that in the case of the absence of family members or relatives, the country where the first asylum application was lodged shall be responsible for the examination of an asylum application of an unaccompanied minor (Article 8 (4) and Article 10 of the proposal). This is very problematic from a human rights perspective and the proposed provision also contradicts to some extent the CJEU judgement in M.A. and others. From a practical perspective, it is foreseeable that the necessary “assessment of his/her best interests”prior to a transfer (Article 8(4) of the proposal) will lead to non-uniform application of this rule as Member States have significantly diverging approaches to the protection of the rights of the child in asylum procedures. The situation will most likely be as divergent as it was before the CJEU ruling.

Two changes foreseen are likely to extend the human rights compatibility of the system. The first proposal concerns the extension of the definition of family members to siblings and the abolition of the necessity that the family already existed in the country of origin (Article 2g of the proposal). These changes will not solve all the related practical problems in this area but are important steps towards an enhanced protection of the family unity. The second foresees a maximum duration of Dublin detention of a total of six weeks (Article 29 of the proposal) whereas the current system allows for a maximum of twelve weeks of Dublin detention.

Allocation of responsibility in situations of disproportionate pressure

The Commission proposes the abolition of the early warning, preparedness and crisis management mechanism (Art. 33 Dublin-III-Regulation). And suggests the introduction – as a tool for situations of disproportionate pressure on Member States – of a corrective allocation mechanism. The proposed mechanism (Article 34 of the proposal) seems to be administratively unworkable and politically illusory looking at the on-going discussions since the first attempt to establish such a mechanism as part of the Dublin-III-Proposal (Article 31 of the Dublin-III-Proposal of 2008). The current difficulties in setting up the relocation mechanism that was introduced in 2015 also raise the question of whether it would be actually possible to organise the necessary transfers. Nevertheless, looking at alternative ways to allocate responsibility is inevitable for the setup of a real CEAS that actually does what an asylum system should do: providing protection for the person in need of protection.

Conclusion

The proposal has been essentially influenced by an evaluation of the application of the Dublin-III-Regulation and of the administrative workability of the Dublin system conducted by the Commission. At first sight, this evaluation seems to have been conducted in a hasty, non-thorough way as the recast proposal gives the impression of a certain disorientation regarding political context and historical awareness: many of the “newly” proposed measures and solutions have already been (unsuccessfully) “tested” in earlier “versions” of the Dublin system or have already been (unsuccessfully) already proposed in a more favourable political climate.

Moreover, the proposed measures as a whole seem to be guided by the scientifically not validated idea that the main trigger for onward movements are diverging practices in Member States asylum systems. The CEAS is portrayed in these measures as a self-referential system that triggers push and pull factors. The scientifically validated main reasons for onward movements such as family links or cultural reasons or the economical situation of a specific country are widely ignored by the proposed measures. The proposal focuses on measures that significantly limit the possibility to access the asylum system of any other state than the Member States of arrival. The Commission proposal raises serious questions on the role of the Commission as the guardian of the Treaties in the process of the setting up of the CEAS. The proposal as a whole is fragmentary and is already containing a variety of measures which would further contribute to a dysfunction of the Dublin system. Additionally, the individual rights of asylum seekers would be significantly diminished if the recast proposal would be adopted in its current form.

Finally, neither the main practical questions (concerning transfers) nor the main legal questions are successfully addressed by the proposed changes.

In my view, the main legal problem of the responsibility allocation mechanism lies in the fact that it was created before common standards were defined and that there is no central authority that actually has unifying tendency for the practice (i.e. there is neither a first instance authority nor an appeal body on the European level). From a more systemic perspective, the huge divergences of the national asylum systems contributed to the difficulties in operating the system. The Dublin system is currently a system of national asylum systems and not a Common European Asylum System (CEAS). For various reasons that are ultimately dependent on national traditions and the related set-up of the administrative systems, these divergences will remain even if the established common standards for the CEAS that are based on the 1951 Refugee Convention and ECHR have led to a certain degree of harmonisation between the Member States.

In this context, the creation of a European Union Agency for Asylum would be a very important step for the system, although its creation seems currently completely unrealistic and illusory. Meanwhile, the difficult legal and practical questions of the Dublin system will remain a core feature of the debate on the CEAS in general. In this sense Dublin is very much alive.

 

National Policy application of the EU Charter of fundamental rights

REPORT ACCESSIBLE ON THE COUNCIL REGISTER OF DOCUMENTS    (May 2016)

1.  Introduction

This seminar was organised by the Netherlands Presidency of the Council of the European Union (EU) in Amsterdam on 19 February 2016 and supported by the European Commission. It explored the opportunities and challenges of applying the Charter of Fundamental Rights of the EU (Charter) when developing national policy legislation.

The Charter of Fundamental Rights of the European Union sets out the most important rights of citizens and is legally binding on EU institutions and bodies. The Charter also applies to the actions of member states when they are implementing Union law.

Since the EU Charter of Fundamental Rights became legally binding, a great deal of attention has been paid to the application of the rights it contains in court judgments. The number of cases in which the Court of Justice of the European Union has referred to the Charter has gradually increased from 47 in 2011 to 210 in 2014. So its legal importance is steadily growing. However, it is also important that policymaking and legislative processes in the member states have regard for the rights in the Charter, some of which – such as the right to asylum – are not set out in the European Convention on Human Rights and Fundamental Freedoms. Some of the rights in the Charter are specifically related to the EU, including the right to vote in local elections in the member state of residence.

The Charter sets out a series of individual rights and freedoms. It entrenches all the rights found in the case law of the Court of Justice of the EU, the rights and freedoms enshrined in the European Convention on Human Rights and other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments. The Charter is a very modern codification and includes ‘third generation’ fundamental rights, such as data protection, guarantees on bioethics and transparent administration.

The Netherlands Presidency attaches importance to  the correct application of the Charter. The seminar offered a platform for the member states to exchange information and views on the challenges they have faced in applying the Charter and the instruments they have used. Different experiences were presented during the seminar with the aim of identifying whether or not certain practices are successful, and why.

In this report you will read about the ideas that were exchanged on Charter application in chapter two. The third chapter gives a retrospective sketch of the whole day. The fourth chapter reports on the meetings of the four working groups. This report also includes furthermore the programme of the day (p. 15), the schematic overview of article 51 EU Charter situations (abstract conference paper), the Netherlands manual on national application of the EU Charter of Fundamental Rights and a list of the participants of the seminar.

The outcomes of the seminar will be followed up at the meeting of the Council Working Group on Fundamental Rights in Brussels to, be included in the annual conclusions of the Justice and Home Affairs Council on the application of the Charter.

This reports aims to highlight the primary points from the seminar. It  focuses on challenges and opportunities for Charter application at the legislative processes of member states.

2.  Charter application at the national level: some ideas exchanged

The Member States have to comply with the EU Charter in their national legislative processes, but only with regard to legislative acts qualifying as the implementation of Union law in the sense of Article 51(1) of the EU Charter. National legislative proposals therefore need to be assessed in the light of Article 51(1) of the Charter. This assessment is sometimes simple, but can also be a complex juridical technical exercise. As the conference paper (drafted by Mirjam de Mol)  pointed out, the rather abstract concept of ‘Article 51 implementation’ covers a variety of concrete situations. The dividing line between on the one hand legislative proposals within the scope of EU law (need for Charter check) and on the other hand purely national legislative proposals (no need for Charter check) might be difficult to discern.

Charter specificity or holistic approach?

During the seminar many participants were of the view that the Charter should be seen, and approached as part of a larger structure of human rights instruments rather than dealt with in isolation. Rather than focusing on the creation of a separate and wholly new compliance check, the main challenge is to create more general alertness in the national legislative process for the possible application of the EU Charter and to develop methodological steps necessary to detect and to identify Article 51 proposals. Some participants suggested that in this matter instructions of the Court of Justice would be helpful. In the case of national legislation executing new incoming EU legislative acts, this alertness is (or should be) evident. However, it is also necessary to develop an awareness for the EU Charter in the process of national lawmaking that is purely nationally initiated. Participants discussed the question how to provide a basis for further thinking on how the Member States could incorporate an Article 51 EU Charter check within their national legislative processes.

Anchoring the Charter in human rights proofing methods and systems

Participants emphasised the importance of developing methodological steps necessary to detect and to identify Article 51 proposals. Many experts stressed the difficulty to assess whether nationally originating legislation or executive measures fall within the scope of the Charter. In order to improve the Charter proofing of legislation the following ideas were advanced:

  • Better use of existing mechanisms and structures to ensure that Charter application is effectively pursued in policy and legislative processes;
  • Take into account the Charter in the preparatory phase of the human rights proofing of legislation, e.g. by implementing a checklist on the application of the Charter.
  • Select a few files for in depth scrutiny.
  • Strengthen scrutiny in parliament (via Human Rights Committees);
  • Involve external bodies (e.g. NHRI, Ombudsman) in the preparatory phase of legislation
  • Develop a database for sharing European and national manuals/guidelines

In most member states  no specific instruments exist to check new policies and legislation with compliance with the Charter. Well-known exceptions include Finland and the Netherlands. Many member states do have instruments available for checking new policies and legislation to EU-law and human rights  in general. Furthermore, some parliaments in member states and the European Parliament have parliamentary committees for human rights that report on draft bills..

As was put forward in the conference paper a charter-check could be divided in the following two steps:

  • Assessment of whether the EU-Charter applies by virtue of Article 51;
  • Identification of whether the proposal at issue possibly interferes with Union fundamental rights and the examination of whether the proposal is in line with the EU-Charter (‘compliance-check’).

Raising Charter awareness

Continue reading “National Policy application of the EU Charter of fundamental rights”

The EU Charter of Fundamental Rights in 2015

NOTA BENE :
European Commission Annual report  (SWD(2016) 158) accessible HERE
The annex with an ARTICLE BY ARTICLE ANALYSIS  (148 pages) is accessible HERE

Introduction

The EU faced numerous challenges in 2015: security threats, unprecedented arrivals of refugees and migrants, a rise in populism and xenophobia. These put EU values and solidarity to the test. Facing such challenges, it is vital to uphold the EU’s common values of democracy, fundamental rights and the rule of law.

The Charter of Fundamental Rights entered into force in 2009. It has proven to be an important reference point for European1 and national courts. The European Commission promotes its respect in all EU actions and works closely with national, European and international organisations to this end.

This sixth annual report reviews how the EU and its Member States applied the Charter in 2015. The focus section presents the 2015 Annual Colloquium on Fundamental Rights, which debated ‘Tolerance and respect: preventing and combating Antisemitic and anti-Muslim hatred in Europe’.

In 2016, the Colloquium on Fundamental Rights will be devoted to the issue of “Media Pluralism and Democracy”. The colloquium will discuss the links between media pluralism and democracy in the context of the changing media environment characterised by increased media convergence and the development of the digital single market. It will explore the many aspects of media pluralism ranging from media independence and media regulation to questions of freedom of speech and journalistic freedom.   It will be preceded by consultations with civil society and stakeholders.

  1. Charter application in and by the EU

2.1 Charter mainstreaming and better regulation

Systematic fundamental rights checks during the legislative process are necessary to ensure compliance of draft legislation with the Charter. The Commission’s Better Regulation agenda2 revised existing guidelines for improving impact assessments of draft legislation and policies. Better regulation aims to boost transparency in EU decision-making and improve the quality of laws. A ‘better regulation toolbox’3 includes a fundamental rights checklist that the Commission is to use when conducting assessments. In 2015, the Commission trained specific departments to ensure that officials have the tools to apply a fundamental rights-based approach to policy and lawmaking.

In September 2015, the European Parliament adopted a resolution on fundamental rights in the European Union 2013-20144. It set  out concerns on  individual fundamental rights situations in   some Member States and called for a framework to monitor the rule of law. In June 2015, the Council adopted conclusions on the Charter’s application in 2014.5

2.2. Mainstreaming the Charter in legislative and policy actions Continue reading “The EU Charter of Fundamental Rights in 2015”

On the frontline: the hotspot approach to managing migration

FULL STUDY FOR THE EUROPEAN PARLIAMENT LIBE  COMMITTEE AVAILABLE HERE

by Darren  NEVILLE, Sarah  SY, Amalia  RIGON

EXECUTIVE SUMMARY

The migration and refugee crisis has brought multiple challenges for the European Union’s migration, asylum and border management policy architecture. The sheer number of new arrivals, together with their concentration on certain migration routes (first into Italy and subsequently into Greece and then onwards along the Western Balkan route), have placed the EU and particularly frontline Member States under considerable strain. The crisis has thus exposed shortcomings both in EU policy and its implementation. And – as some Member States resort to national responses, such as internal border checks, and countries along the Western Balkan route effectively close their borders – more and more migrants and  refugees have found  themselves trapped in Greece,  sparking  a humanitarian  crisis.

The unprecedented migration flows have generated substantial policy and legislative activity centred around the European Commission’s May 2015 European Agenda on Migration. The Agenda sets out five priority actions to manage migratory flows, since backed up by a number of initiatives – for example to combat migrant smuggling and enhance border management – with further initiatives to overhaul the asylum system, to improve reception conditions and to bolster resettlement in the pipeline. The Agenda emphasises specifically the need to return those with no right to remain and to relocate some of those in clear need of international protection out of frontline Member States as part of a responsibility-sharing mechanism. Both on return and relocation, initiatives have followed. These include two decisions, adopted by the Council in September 2015, to provide for the relocation of 160,000 people in clear need of protection from Greece and Italy to other EU Member States. In particular the need to cooperate with third countries to bring order to migratory flows, stressed repeatedly by the European Council, led to the EU-Turkey statement of 18 March 2016. The statement, which aimed to drive down the number of irregular and dangerous migrant crossings from Turkey to the Greek islands, established a mechanism governing the return of irregular migrants from Greece to Turkey and  the  resettlement of  Syrians from Turkey  to  the  EU.

As part of the immediate response to assist frontline Member States facing disproportionate migratory pressure, the Commission outlined a new hotspot approach to migration in its European Agenda on Migration. Located at key arrival points in frontline Member States, hotspots are designed to inject greater order into migration management by ensuring that all those arriving are identified, registered and properly processed. Hotspots thus link inextricably both to the relocation programme and to the aim of ensuring effective returns. Hotspots are based on the operational deployment of multiple EU agencies, notably Frontex, EASO and Europol, and are coordinated by a Regional Task Force in each Member State where hotspots are in operation – currently Italy and Greece. Rollout of the hotspots proved initially sluggish, due in part to the need to build them from scratch and to remedy infrastructure shortcomings, but has gathered pace significantly since early 2016. Four of the five planned hotspots in Greece are now operational as are four of the six planned in Italy. There seems to be consensus that hotspots have delivered greater order and substantially improved  registration  and  fingerprinting rates.

And yet criticism of the hotspots has been vehement in certain quarters. Critics point, for example, to a lack of clarity about what happens to those who do not qualify for relocation, but nonetheless wish to apply for international protection. The new mechanism agreed with Turkey has also prompted NGOs formerly providing essential services in the hotspot on Lesvos to pull out in protest at the conversion of the hotspot into a closed facility and at what they regard as a move to collective expulsions. Their withdrawal has reportedly led to a worsening of conditions in the hotspot centres. The Commission itself also acknowledges that the EU-Turkey Statement has shifted the focus in the Greek hotspots from identification  and  registration  to return.

Nevertheless, for all the difficulties to date, the hotspot approach remains fundamentally valid. By providing on-the-ground operational support from EU agencies, it can help to ensure that migration is effectively managed on the frontline. In order to meet this challenge, however, a number of policy recommendations might merit consideration by the European  Parliament:

On hotspots:

The European Parliament could consider the need to regulate hotspots through a stand-alone legal instrument, taking into account its interaction with other relevant instruments, such as the EU Asylum Procedures and Reception Conditions Directives. The loose policy framework surrounding hotspots may provide operational flexibility, but the absence of a stand-alone legal instrument may in turn lead to a lack of legal certainty. Regulating agencies’ roles in hotspots through separate legal instruments – such as a new European Border and Coast Guard Regulation – could undermine  the  multi-agency  foundation.

Members could call for a clearer role for individual agencies and clearer framework for their cooperation within hotspots. While both Frontex and EASO are heavily engaged in the hotspots, there is considerable disparity in terms of their respective staff deployment and budgetary resources. Europol’s on-the-ground deployment appears to be patchy, while the role of Eurojust seems even less well developed. The Fundamental Rights Agency is invited to provide input through existing cooperation agreements, though there  is no mainstreaming of its  role.

Mainstreaming fundamental rights in the hotspots. A clearly designated role for the FRA in the hotspot approach could help to address the obvious fundamental rights challenges in the pressurised environment of the hotspots. This is especially important given the need to protect the fundamental rights of vulnerable groups, such as women and children. Equally, while executive powers may rest with Member States, the enhanced operational support provided by EU agencies in hotspots calls for much clearer rules on the extent  to  which they  can be considered  liable and  accountable for their actions.

Members should insist that proper procedures for all protection seekers are guaranteed in hotspots as enshrined in the EU Asylum Procedures Directive. Swift processing of migrants and refugees within hotspots must not come at the expense of their rights and proper safeguards. Migrants must always be given the opportunity to apply for international protection and applications must be assessed on an individual, objective and impartial basis. Returns can only be carried out subject to a prior non-refoulement and proportionality     check.     Hotspots     cannot     provide     a    binary    choice    between     relocation     and return, but must have clear procedures for those wishing to apply for international protection, but  not qualifying  for  relocation.

Members should insist that efforts to register and identify all migrants arriving in the hotspots continue in order to enhance both relocation and return procedures and to improve overall security. In both Italy and Greece, registration and fingerprinting rates have improved considerably, reaching 100% in both countries. The Commission has also stated that the hotspot workflow and relocation process include systematic security checks. It is important to redouble efforts and ensure that everyone arriving is registered and  checked  against relevant  Interpol   and EU databases.

On  the Dublin  Regulation:

The European Parliament should, in its role as co-legislator, insist on a fundamental   change   to   the   Dublin   Regulation   and   a   binding   distribution   system.

The natural extension of the relocation policy and the deployment of EU agencies in hotspots would seem to be a fundamental overhaul of the Dublin Regulation with a binding system for distributing asylum seekers among the Member States, using a fair, compulsory allocation  key.

Any resumption of transfers to Greece under the existing Dublin Regulation should take into account that Greece still receives a large number of protection seekers on a daily basis. Regardless of the Commission’s proposed Dublin reform, plans to reinstitute Dublin transfers to Greece under the existing Dublin Regulation in June 2016 seem to contradict the idea of an emergency relocation mechanism to transfer those in need of international protection out of Greece. Resumption of Dublin transfers before pressure has been alleviated and adequate reception conditions are guaranteed appears premature.

On a possible new mandate  for EASO:

EASO should be given a stronger mandate and enhanced resources. In parallel with the creation of a European Border and Coast Guard with a reinforced mandate, the Parliament could support the Commission’s proposal to enhance EASO’s mandate in line with its operational role in hotspots and increase parliamentary oversight. If the agency is to play a new policy implementation role and a greater operational role, it will require sufficient  financial  resources  and  adequate legal  means.

On the EU-Turkey statement:

Members should call on the Commission to monitor carefully the implementation of the EU-Turkey statement. The Commission must be vigilant in monitoring implementation of the mechanism and respect for human rights, not least in light of the criticism from NGOs and other international organisations. Reports of illegal detention or deportation must be fully investigated. The Parliament should fulfil its role as co-legislator when  it  comes to  the visa liberalisation  process  and  budgetary  aspects.

TABLE OF CONTENT

  1. INTRODUCTION

2 THE POLICY FRAMEWORK SURROUNDING HOTSPOTS          
Relocation and resettlement programmes
Irregular migration and return
Improving  border management
Creating adequate reception capacity and conditions

  1. THE SITUATION IN GREECE

3.1.      Reception and asylum in Greece
Reception  capacity  in  Greece
Asylum applications in Greece
3.2.      The situation at the  Greek borders and the Schengen area
The situation  at  the Greece-FYROM border:  the  makeshift  camp  of Idomeni
Greece  and  the  Schengen area
Budgetary support to  Greece
The EU-Turkey statement – the consequences of the new mechanism
The  revised  Greek  law on  asylum
The  Greece-Turkey  Readmission Agreement
Initial  impact  on  migration  flows

  1. THE LEGAL AND POLICY FRAMEWORK GOVERNING HOTSPOTS

4.1.      Hotspots:  the policy framework
Coordination  of the  hotspot  approach
Tasks to  be  performed  in  the hotspots
Hotspots:  the legal framework
Hotspots:  outstanding policy  and legal questions
Ensuring  proper  procedures  for all   asylum  seekers
The absence of a  stand-alone legal  instrument
The  enduring  question of fundamental  rights liability
Mainstreaming  fundamental  rights in  the hotspots
The policy  focus  of  hotspots

  1. HOTSPOTS IN PRACTICE – GREECE AND ITALY

5.1.      Hotspots in Greece
Agency presence  in  Greek  hotspots
The legal  and  regulatory framework
The  EU-Turkey  statement:  a  shift in  focus  for  hotspots
Hotspots  in  Greece  –  a  brief assessment
5.2.      Hotspots in Italy
Agency presence  in  Italian  hotspots
The legal  and  regulatory framework
Hotspots  in  Italy – a  brief  assessment

  1. EUROPEAN PARLIAMENT POSITION AND ACTIVITIES
  2. CONCLUSIONS AND POLICY RECOMMENDATIONS

Art.19 of the EU Charter (Protection in the event of removal, expulsion or extradition). Interesting Conclusions of AG Yves BOT.

Original published here

OPINION OF ADVOCATE GENERAL Yves BOT delivered on 10 May 2016 (1)

Case C‑182/15 Aleksei Petruhhin

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia)) (Request for a preliminary ruling — Citizenship of the European Union — First paragraph of Article 18 TFEU and Article 21(1) TFEU — Request for the extradition to Russia of a national of one Member State present on the territory of another Member State — Refusal of a Member State to extradite its own nationals — Difference in treatment on the ground of nationality — Whether justified — Combating impunity — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union)

  1. Extradition may be defined as an international mutual assistance enforcement procedure whereby one State asks another State to surrender to it a person on the territory of the latter State in order to be prosecuted and tried or, if he has already been convicted, in order to serve his sentence.
  2. The present case concerns an extradition request issued by the Russian Federation to the Republic of Latvia in relation to an Estonian national who had been arrested on the territory of the Republic of Latvia.
  3. In essence, the Court is asked to rule on whether the protection against extradition which Latvian nationals enjoy under national law and under a bilateral agreement with the Russian Federation must, under the rules of the FEU Treaty on citizenship of the Union, be extended to nationals of other Member States.
  4. A number of Member States, including the Republic of Latvia, recognised, in their national law and also in the international conventions to which they are parties, the principle that they refuse to extradite their nationals. When an extradition request is addressed to a Member State and that request concerns a citizen of the Union who is not a national of the requested Member State, such a principle establishes a difference in treatment between the nationals of that State and the nationals of the other Member States. I am of the view, however, that such a difference in treatment does not constitute discrimination on the ground of nationality contrary to the first paragraph of Article 18 TFEU, provided that it is shown that those two categories of nationals are not in a comparable situation in the light of the objective of combating the impunity of persons suspected of having committed an offence in a third State.

I –  Legal framework

A –    EU law

  1. Article 19 of the Charter of Fundamental Rights of the European Union, (2) entitled ‘Protection in the event of removal, expulsion or extradition provides, in paragraph 2:

‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

B –    Latvian law

  1. The Latvian Constitution provides in the third sentence of Article 98:

‘A citizen of Latvia may not be extradited to a foreign country, except in the cases provided for in international agreements ratified by the Saeima (Latvian Parliament) if by the extradition the basic human rights specified in the Constitution are not violated.’

  1. Under Article 4 of the Krimināllikums (criminal law, ‘the Latvian Criminal Law’):

‘1.      Latvian citizens, Latvian non-citizens [ (3)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed.…

  1. Foreign nationals who do not have a permanent residence permit for Latvia and who have committed serious or very serious offences in the territory of another State which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants shall be held criminally liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable or faced criminal proceedings in application of the laws of the State in which the offence was committed.
  2. Foreign nationals who do not have a permanent residence permit for Latvia and who have committed a criminal offence in the territory of another State or outside any national territory shall, in the cases provided for in international agreements binding on the Republic of Latvia, be held liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable for such offence or faced criminal proceedings in respect of that offence in the territory of another State.’
  3. Chapter 66 of the Kriminālprocesa likums (code of criminal procedure, ‘the Latvian Code of Criminal Procedure’), entitled ‘Extradition of a person to a foreign State’, provides in Article 696(1) and (2):

‘(1)      A person who is present in the territory of the Republic of Latvia may be extradited for the purpose of criminal proceedings, trial, or the execution of a judgment, if a request has been received from a foreign State for the temporary detention or the extradition of that person and the facts are characterised as a criminal offence under Latvian law and the law of the foreign State.

(2)      A person may be extradited for the purpose of criminal proceedings or trial in respect of an offence the commission of which is punished by imprisonment for a maximum term of not less than one year or by a more severe penalty, unless an international treaty provides otherwise.’

  1. Article 697(2) of the Latvian Code of Criminal Procedure is worded as follows:

‘Extradition shall not be granted if:

(1)      the person concerned is a Latvian citizen;

(2)      the request for the extradition of the person concerned has been made with the aim of commencing criminal proceedings against him or punishing him on the ground of race, religious beliefs, nationality or political views, or if there are sufficient grounds for believing that his rights may be infringed on the abovementioned grounds;…

(7)      the person concerned may be tortured in the foreign State.’

  1. The Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters provides, in articles 1 and 62:

‘Article 1: Legal protection

  1. As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.
  2. The nationals of one of the Contracting Parties shall be entitled to access freely and without hindrance the courts, the office of the Public Prosecutor and notarial offices … and other institutions of the other Contracting Party with competence for civil, family and criminal matters, they may bring proceedings, submit requests, lodge appeals and carry out other procedural acts before those bodies on the same terms as nationals of that other Contracting Party.…

Article 62: Refusal of extradition

  1. Extradition shall not be granted if:

(1)      the person whose extradition is requested is a national of the Contracting Party to which the request is addressed or if he has obtained refugee status in that State.…’

  1. The Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations, signed at Tallinn on 11 November 1992, provides in Article 1(1):

‘As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.’

II –  Facts of the main proceedings and questions for a preliminary ruling

  1. Mr Aleksei Petruhhin, an Estonian national, was made the subject of a priority Red Notice on Interpol’s website on 22 July 2010.
  2. Mr Petruhhin was arrested on 30 September 2014 in the town of Bauska (Latvia), then placed in provisional custody on 3 October 2014.
  3. On 21 October 2014, the Latvian authorities received an extradition request from the Office of the Prosecutor-General of the Russian Federation. It is apparent from that request that criminal proceedings were initiated against Mr Petruhhin by decision of 9 February 2009 and that Mr Petruhhin ought to have been placed in custody as a security measure. According to that decision, Mr Petruhhin is accused of attempted large-scale drug-trafficking in criminal association. Under Russian law, that offence is punishable with a term of imprisonment of between 8 and 20 years.
  4. The Public Prosecutor of the Republic of Latvia authorised Mr Petruhhin’s extradition to Russia. However, on 4 December 2014 Mr Petruhhin filed an appeal against the extradition decision, on the ground that, under Article 1 of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial assistance and Judicial Relations, he enjoyed the same rights in Latvia as a Latvian national and that, consequently, the Republic of Latvia was required to protect him against unjustified extradition.
  5. The Augstākā tiesa (Supreme Court, Latvia) points out that neither Latvian law nor any international agreement signed by the Republic of Latvia with, in particular, the Russian Federation and with the other Baltic countries restricts the extradition of an Estonian national to Russia. Under Article 62 of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters, protection against such extradition is conferred only on Latvian nationals.
  6. The referring court observes, moreover, that although Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (4) authorises the Member States to surrender their own nationals, no consultation mechanism has been established between the Member States for obtaining the consent of the Member State of which a person is a national to the extradition of that person to a third State.
  7. According to the referring court, it follows from the foregoing considerations that the protection afforded by a Member State to its own nationals against extradition to a third State is effective only on the territory of that Member State. The referring court is of the view, however, that that is contrary to the essence of citizenship of the Union, that is to say, the right to equivalent protection. It emphasises that that situation creates uncertainty for citizens of the European Union as regards freedom of movement within the European Union.
  8. The referring court expresses the view that, under EU law, where there is a request for the extradition of a national of a Member State to a third State, the requested Member State should ensure the same level of protection for citizens of the Union as for its own nationals.
  9. Being uncertain, none the less, as to the interpretation to be given to EU law, the Augstākā tiesa (Supreme Court) decided on 26 March 2015, while annulling the detention of Mr Petruhhin, to stay proceedings and to submit the following questions to the Court for a preliminary ruling:

‘1.      Are the first paragraph of Article 18 TFEU and Article 21(1) TFEU to be interpreted as meaning that, in the event of extradition of a citizen of any Member State of the European Union to a non-Member State under an extradition agreement concluded between a Member State and a third country, the same level of protection must be guaranteed as is guaranteed to a citizen of the Member States in question?

  1. In those circumstances, must the court of the Member State to which the request for extradition has been made apply the conditions for extradition of the Member State of which the person concerned is a citizen or that in which he has his habitual residence?
  2. In cases in which extradition must be carried out without taking into consideration the specific level of protection established for the citizens of the State to which the request for extradition has been made, must the Member State to which the request for extradition has been made verify compliance with the safeguards established in Article 19 of the Charter, that is, that no one may be extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment? May such verification be limited to checking that the State requesting extradition is a party to the Convention against Torture or is it necessary to check the factual situation by taking into consideration the evaluation of that State carried out by the bodies of the Council of Europe?’

III –  My analysis

A –    Preliminary observations

  1. The possible application of Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations for the purpose of resolving the main proceedings
  2. In his appeal against the decision of the Public Prosecutor of the Republic of Latvia authorising his extradition, Mr Petruhhin relies, in particular, on Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. He claims, on the basis of that provision, that he should receive from the Republic of Latvia the same protection as that Member State affords its nationals in the event of criminal proceedings. It follows that that Member State is required to protect Mr Petruhhin against an unjustified extradition request and that he is entitled to expect that the Republic of Latvia will do its utmost to obtain evidence to establish his guilt or innocence. In his submission, however, it is apparent from the position adopted by the Public Prosecutor of the Republic of Latvia that nothing will be done to verify as much and as accurately as possible the offences which he is alleged to have committed on Russian territory.
  3. At the hearing, the Latvian Government was asked whether Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations might be interpreted as conferring on Estonian and Lithuanian nationals the same protection against extradition as that enjoyed by Latvian nationals. The Latvian Government stated, in that regard, that thus far the Latvian case-law has not interpreted that provision as conferring additional guarantees on Estonian and Lithuanian nationals not to be extradited by the Republic of Latvia.
  4. It is for the referring court to ascertain whether it may find a solution to the main proceedings by interpreting Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. It is incumbent on that court, in particular, to consider whether the expression ‘personal rights’ in that provision covers the right to legal protection against extradition.
  5. Admissibility of the request for a preliminary ruling
  6. At the hearing, the Latvian Government revealed that Mr Petruhhin is no longer on its territory, but that, following the cancellation of his detention on 26 March 2015, he returned to Estonia. The Governments of the Member States which expressed their views at the hearing inferred that the present request for a preliminary ruling should be declared inadmissible.
  7. In that regard, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them. (5)
  8. In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, provided that the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. (6)
  9. It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)
  10. Thus, it should be borne in mind that, according to settled case-law, it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. (8)
  11. That is the position in the present case. The Latvian Government confirmed at the hearing that there is still a dispute pending before the referring court. Whatever the uncertainty as to Mr Petruhhin’s present whereabouts, the referring court must therefore adjudicate on the legality of the decision taken by the Public Prosecutor of the Republic of Latvia to extradite him. Under Article 707 of the Latvian Code of Criminal Procedure, the referring court may decide either that the Public Prosecutor’s decision must be upheld, or that it must be annulled and that the extradition must not be authorised, or that the extradition request must be further examined. From the aspect of the decision to be taken by the referring court, an answer from the Court to the questions submitted by the referring court is still wholly relevant. Just as in the case of a convicted person who absconds after being found guilty, such a decision may then be enforced at any time, if need be after Mr Petruhhin has been re-arrested on Latvian territory.
  12. In the light of those factors, I therefore consider that the present request for a preliminary ruling is admissible.

B –    First and second questions

  1. By its first and second questions, which should be examined together, the referring court asks the Court, in essence, to rule on whether the first paragraph of Article 18 TFEU and Article 21(1) TFEU must be interpreted as meaning that a national of one Member State who is on the territory of another Member State and who is the subject of an extradition request by a third State must benefit from the same rule as that which protects the nationals of that other Member State against extradition.
  2. It is appropriate first of all to ascertain whether Mr Petruhhin’s situation falls within the scope of EU law and, in particular, the provisions of the FEU Treaty on citizenship of the Union.
  3. All the Governments which have submitted observations to the Court, with the exception of the Government of the United Kingdom, claim that the rules on extradition, in a situation in which the European Union has not concluded an agreement on extradition with a third State, falls within the competence of the Member States and is therefore not covered by EU law.
  4. I do not share that view. On the contrary, I endorse the view position expressed by the Government of the United Kingdom at the hearing, namely that the first paragraph of Article 18 TFEU and Article 21(1) TFEU are applicable since Mr Petruhhin exercised his right to freedom of movement or his right of residence under EU law and that he is therefore, in principle, entitled to be treated in the same way as nationals of the host Member State.
  5. It should be pointed out that, as an Estonian national, Mr Petruhhin has the status of a citizen of the Union pursuant to the first paragraph of Article 20(1) TFEU and may therefore rely, as against both his Member State of origin and the Member State to which he travels, on the rights attaching to such a status.
  6. As the Court has held on numerous occasions, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy, within the scope ratione materiaeof the FEU Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard. (9)
  7. As citizenship of the Union, established by Article 20 TFEU, is not intended to extend the material scope of the FEU Treaty to internal situations which have no link with EU law, (10) it is necessary to identify whether such links exist.
  8. On this point, the Governments of the Member States have reiterated, in the context of these proceedings, the classic position in this type of situation, namely that in order for the FEU Treaty rules on citizenship of the Union to be applicable the facts of the main proceedings must relate to a matter governed by EU law and that it is not sufficient that the citizen of the Union concerned has exercised his freedom of movement.
  9. However, it must be emphasised that it is settled case-law that the situations falling within the scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the FEU Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. (11) Thus, in matters falling within the competence of the Member States, a relevant link with EU law may consist in the exercise by a national of one Member State of his right to move and reside on the territory of another Member State. (12) Conversely, where the Court is faced with a situation in which the matter at issue falls within the competence of the Member State and, moreover, the person relying on EU law has not made use of his right to freedom of movement provided for in Article 21 TFEU, it will declare that it has no jurisdiction to rule on the request for a preliminary ruling before it. (13)
  10. It is common ground that Mr Petruhhin, who was arrested in Latvia, made use of his freedom to move and reside in another Member State, guaranteed by Article 21(1) TFEU.
  11. It should also be made clear that, in the absence of rules of EU law on the extradition of nationals of the Member States to Russia, (14) the Member States retain the power to adopt such rules and to conclude agreements on such extradition with the Russian Federation.
  12. However, the Member States are required to exercise that power in a manner consistent with EU law, and in particular with the provisions of the FEU Treaty on freedom to move and reside on the territory of the Member States, as conferred by Article 21(1) TFEU on every citizen of the Union. That constitutes the application, in matters related to extradition, of a consistent body of case-law to the effect that the Member States are required, in the exercise of their powers, to respect EU law and in particular the provisions of the FEU Treaty on freedom to move and reside on the territory of the European Union recognised to every citizen. (15)
  13. Thus, in areas falling within the powers of the Member States, where a particular situation has a sufficiently close link with EU law, which is the case of a citizen of the Union who has exercised his right to move and reside on the territory of the Member States, those States are required to justify, by objective reasons, a difference in treatment between their nationals and the nationals of the other Member States. (16)
  14. It is now appropriate to examine whether the rule that the Republic of Latvia does not extradite its own nationals constitutes discrimination on the ground of nationality, contrary to the first paragraph of Article 18 TFEU.
  15. Mr Petruhhin was arrested in Latvia and held in custody there until 26 March 2015. An extradition request from the Prosecutor-General of the Russian Federation was received by the Public Prosecutor of the Republic of Latvia on 21 October 2014. It is therefore the provisions of Latvian law and those of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters that are to be applied.
  16. In the context of the present case, the rule that Latvian nationals may not be extradited from Latvia to a third State is set out in the third sentence of Article 98 of the Latvian Constitution, Article 697(2)(1) of the Latvian Code of Criminal Procedure and Article 62(1)(1) of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters.
  17. Since under that rule only Latvian nationals enjoy that protection against extradition, it follows that they are treated differently from nationals of other Member States who are on Latvian territory and whose extradition has been requested by a third State.
  18. As Mr Petruhhin exercised his freedom to move and reside on Latvian territory, as conferred by Article 21(1) TFEU, it is in the light of the first paragraph of Article 18 TFEU that the compatibility of the rule that the Republic of Latvia does not extradite its own nationals to Russia with the principle prohibiting any discrimination on the ground of nationality must be examined.
  19. It is appropriate in that regard to bear in mind that it is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. (17)
  20. It is therefore necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals.
  21. The principle that a State does not extradite its own nationals is a traditional principle of extradition law. Its origins lie in the sovereignty of States over their nationals, the mutual obligations between a State and its nationals and the lack of confidence in the legal systems of other States. Thus, the grounds relied upon to justify that principle include, in particular, the State’s duty to protect its nationals from the application of a foreign legal system, of whose procedures and language they are ignorant and in the context of which it may be difficult for them to mount their defence. (18)
  22. When examined in the light of EU law and the equal treatment which it requires, the foundations of the principle of non-extradition of nationals seem relatively weak. The same applies to the duty of protection which a Member State should have towards its nationals. I do not see why such a duty should not be extended to the nationals of the other Member States. Article 20(2)(c) TFEU lends support to that view, moreover, in so far as it provides that citizens of the Union are to have ‘the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State’.
  23. The same also applies to the argument that the principle of non-extradition of nationals is based on the States’ distrust of foreign legal systems. It has been appositely observed on that point that ‘this distrust is no doubt one of the essential foundations of what fashions the way in which extradition is practised — and in particular refused — nowadays. But while it may constitute good reason for a State not to respond favourably to an extradition request, it does not readily explain why such a request would be refused only where it involves the extradition of a national, on the ground of his nationality. If distrust justifies a refusal to extradite, it justifies a refusal with respect to everyone and not just nationals. (19)
  24. Although the foundations of the rule that a State does not extradite its own nationals must therefore be treated with caution when they are evaluated in the light of the principle of non-discrimination on the ground of nationality, there is, however, in my view, an objective reason to distinguish the situation of the nationals of the requested Member State and that of nationals of other Member States where extradition is requested by a third State.
  25. Thus, it is necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals by reference to the objective to which several Member States and the European Commission have drawn attention in the present proceedings, namely the objective of combating the impunity of persons suspected of having committed an offence. Such an objective is most certainly a legitimate objective in EU law. (20)
  26. I would, on that point, observe that extradition is a procedure which enables an offence to be prosecuted or a penalty enforced. In other words, it is a procedure whose intrinsic aim is to combat the impunity of a person who is present in a territory other than that in which an offence was committed. (21)
  27. In the light of such an objective, the situation of the two categories of citizens of the Union referred to above could be regarded as comparable only if both could be prosecuted in Latvia for offences committed in a third State.
  28. In other words, when examining of the comparability of the situations of nationals of the requested Member State and nationals of the other Member States, it is necessary to ascertain whether, in accordance with the maxim aut dedere aut judicare(either extradite or prosecute), Union citizens who were not extradited to a third State could be prosecuted in the requested Member State for offences committed in that third State. It is therefore necessary to ascertain whether the traditional principle of international law on extradition that a requested State which refuses to extradite its nationals must be able to prosecute them is observed in the present case.
  29. Hugo Grotius defined the principle aut dedere aut punire(either extradite or punish) as follows: ‘when appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’. (22) The word ‘punish’ is now replaced by the word ‘prosecute’ as the second part of the alternative to extradition in order to take account of the presumption of innocence enjoyed by all those suspected of having committed an offence.
  30. The maxim aut dedere aut judicare is also expressed in many bilateral or multilateral conventions on extradition. (23) The obligation to extradite or prosecute is expressed, for example, in the European Convention on Extradition, signed in Paris on 13 December 1957. Article 6(1)(a) of that Convention thus provides that ‘a Contracting Party shall have the right to refuse extradition of its nationals’. Article 6(2) of that Convention completes that provision in so far as it provides that ‘if the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate’.
  31. As indicated in the United Nations Final Report of 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, those conventions are based on the mutual general commitment of the States Parties to surrender any person against whom the competent authorities of the requesting State have initiated proceedings or who is being sought for the purpose of executing a sentence or a security measure. There are a number of exceptions to that obligation to extradite, however, in particular where the person whose extradition is requested is a national of the requested State. In order to avoid impunity, those conventions impose the second part of the alternative on the requested State, namely the obligation to prosecute the offender if it refuses to extradite him. (24)
  32. Thus, under the obligation to extradite or to prosecute, if the requested State does not comply with an extradition request, it is required to prosecute (25) the suspected person in order to ensure the effectiveness of international co-operation between States and to ensure that he does not remain unpunished.
  33. It is precisely by reference to the latter element that, in the context of the present case, Latvian nationals and nationals of other Member States are not in a comparable situation.
  34. The risk of impunity of the person named in an extradition request may exist if the requested Member State has not made provision in its domestic law for jurisdiction allowing it to try a national of another Member State suspected of having committed an offence on the territory of a third State.
  35. In that regard, I would observe, as the Commission has done, that under Article 4(1) of the Latvian penal law, ‘Latvian citizens, Latvian non-citizens [ (26)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed’.
  36. It follows from that provision that Latvian nationals who have committed an offence in a third State may be prosecuted in Latvia. That is also the case for foreign nationals in possession of a permanent residence permit for Latvian territory.
  37. In the case of foreign nationals not in possession of such a permit, on the other hand, the exercise by the Latvian criminal courts of their jurisdiction in respect of offences committed on the territory of another State is limited, under Article 4(3) of the Latvian criminal law, to cases of ‘serious or very serious offences which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants’.
  38. It therefore appears to follow from those provisions of the Latvian criminal law that a national of a Member State other than the Republic of Latvia, such as Mr Petruhhin, who, as the parties are agreed, does not have a permanent residence permit for Latvian territory, cannot be prosecuted in Latvia for an offence which he is suspected of having committed in Russia. It follows that, in the light of the objective of preventing the impunity of persons suspected of having committed an offence in a third State, that national is not in a situation comparable with that of Latvian nationals.
  39. Accordingly, the difference in treatment between non-Latvian citizens of the Union residing in Latvia and Latvian nationals does not constitute discrimination prohibited by the first paragraph of Article 18 TFEU, in so far as it is justified by the objective of combating the impunity of persons suspected of having committed an offence in a third State.
  40. Consequently, in circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

C –    Third question

  1. By its third question, the referring court asks the Court, in essence, to rule on whether a Member State which decides to extradite a citizen of the Union to a third State is required to verify the guarantees provided for in Article 19(2) of the Charter and on what form that verification must take.
  2. It is apparent from the file before the Court that that question seems to originate in Mr Petruhhin’s claim that he would be threatened with torture if he were extradited to Russia.
  3. According to Article 19(2) of the Charter, ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’.
  4. The explanations relating to the Charter of Fundamental Rights (27) state that Article 19(2) ‘incorporates the relevant case-law from the European Court of Human Rights regarding Article 3 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (28)]’. (29)
  5. Since the situation of a national of a Member State who, like Mr Petruhhin, has exercised his freedom to move and reside in the territory of another Member State, falls, as we have seen earlier, within the scope of EU law, I am of the view that Article 19(2) of the Charter may apply in such a situation.
  6. Thus, a court of a Member State which receives a request relating to the extradition of a national of another Member State who has exercised rights conferred by Article 21(1) TFEU is required to verify the guarantees provided for in Article 19(2) of the Charter.
  7. As to what form that verification must take, it is appropriate, in accordance with the explanations in respect of Article 19(2) of the charter, to refer to the relevant case-law of the European Court of Human Rights on Article 3 of the ECHR.
  8. It follows from the consistent case-law of that Court that protection against the treatment prohibited under Article 3 of the ECHR is absolute, and that, accordingly, the extradition of a person by a Contracting State can raise problems under that provision and therefore engage the responsibility of the State in question under the ECHR, where there are serious grounds to believe that if the person is extradited to the requesting country, he would run the real risk of being subjected to treatment contrary to that provision. (30) In such cases, Article 3 of the ECHR ‘implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State’. (31) The European Court of Human Rights states that it ‘draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition’. (32)
  9. When the European Court of Human Rights examines whether an applicant would run the real risk of being subjected to ill treatment in the third country of destination, it considers ‘both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider’. (33) Beyond the general situation in the country of destination, the real risk of being subjected to treatment prohibited by Article 3 of the ECHR must therefore be assessed by reference to the individual circumstances of the person concerned.
  10. In order to determine whether there are substantial grounds for believing the existence of a real risk of treatment contrary to Article 3 of the ECHR, the European Court of Human Rights assesses the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. (34) As regards the general situation in a country, it has often attached importance to information in recent reports from independent international associations for the protection of human rights, such as Amnesty International or government sources. (35)
  11. In addition to that description of the case-law of the European Court of Human Rights, and along the lines of that case-law, it is also appropriate to take note of what the Court recently held in its judgment of 5 April 2016 in Aranyosi and Căldăraru(C‑404/15 and C‑659/15 PPU, EU:C:2016:198), in the context of the application of Framework Decision 2002/584, as amended by Framework Decision 2009/299.
  12. The Court held in that judgment, in particular, with regard to Article 4 of the Charter, that ‘in order to ensure respect for [that article] in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of [deficiencies which may be systemic or generalised, or which may affect certain groups of people] that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of [that article]’. (36)
  13. To my mind, the methodology thus defined by the Court can be transposed to a situation in which, following a request for the extradition of a citizen of the Union issued by a third country, the judicial authority of the requested Member State ascertains whether the guarantees laid down in Article 19(2) of the Charter are respected.

IV –  Conclusion

  1. In the light of all of the foregoing consideration, I propose that the questions submitted by the Augstākā tiesa (Supreme Court, Latvia) should be answered as follows:

In circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

In order to ensure respect for Article 19(2) of the Charter of Fundamental Rights of the European Union in the individual circumstances of the person who is the subject of an extradition request, the judicial authority of the requested Member State, when faced with evidence of the existence of deficiencies which may be systemic or generalised, or which may affect certain groups of people that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following his extradition to the requesting third State, that citizen of the Union will run a real risk of being subject in that State to inhuman or degrading treatment, within the meaning of that provision.

1 – Original language: French.

2 – ‘The Charter’.

3 –      When questioned at the hearing about the meaning of this expression, the Latvian Government explained that ‘Latvian non-citizens’ are former Soviet citizens who arrived in Latvia after that State gained independence. These citizens did not choose either Latvian nationality or Russian nationality and may become naturalised.

4 – OJ 2002 L 190, p. 1. Framework Decision as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009, L 81, p. 24).

5 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 23 and the case-law cited).

6 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 24 and the case-law cited).

7 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 25 and the case-law cited).

8 – See, in particular, order of 5 June 2014 in Antonio Gramsci Shipping and Others (C‑350/13, EU:C:2014:1516, paragraph 10 and the case-law cited).

9 – See, in particular, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 21 and the case-law cited).

10 – See, in particular, judgment of 26 October 2006 in Tas-Hagen and Tas (C‑192/05, EU:C:2006:676, paragraph 23 and the case-law cited).

11 – See, in particular, judgments of 11 July 2002 in D’Hoop (C‑224/98, EU:C:2002:432, paragraph 29 and the case-law cited); of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 71 and the case-law cited); of 4 October 2012 in Commissionv Austria (C‑75/11, EU:C:2012:605, paragraph 39 and the case-law cited); and of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 22 and the case-law cited).

12 – See Iliopoulou, A., ‘Entrave et citoyenneté de l’Union’, L’entrave dans le droit du marché intérieur, Bruylant, Brussels, 2011, p. 191. According to the author, ‘no national rule can be excluded a priori from the classification as a barrier in the context of citizenship. The existence of a cross-border element is sufficient to bring the situation within the context of Community law and to trigger a review of compatibility with the requirements of the Treaty’ (p. 202). See also, on that point, the Opinion of Advocate General Kokott in Tas-Hagen and Tas (C‑192/05, EU:C:2006:223, points 25 to 43).

13 – See, in particular, order of 19 June 2014 in Teisseyre (C‑370/13, not published, EU:C:2014:2033, paragraphs 33 to 35).

14 – There is, on the other hand, an Agreement on extradition between the European Union and the United States (OJ 2003 L 181, p. 27) (see Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ 2009 L 291, p. 40)).

15 – See, in particular, concerning national provisions on compensation for victims of assaults carried out on national territory, judgment of 2 February 1989 in Cowan (186/87, EU:C:1989:47, paragraph 19); regarding national rules on criminal matters and criminal procedure, judgment of 24 November 1998 in Bickel and Franz (C‑274/96, EU:C:1998:563, paragraph 17); on national rules governing a person’s surname, judgments of 2 October 2003 in Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 25), and of 12 May 2011 in Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 63 and the case-law cited); regarding an enforcement procedure for the recovery of debts, judgment of 29 April 2004 in Pusa (C‑224/02, EU:C:2004:273, point 22); as regards national rules on direct taxation, judgment of 12 July 2005 in Schempp (C‑403/03, EU:C:2005:446, paragraph 19); concerning national rules defining the persons entitled to vote and stand as a candidate in elections to the European Parliament, judgment of 12 September 2006 in Spain v United Kingdom (C‑145/04, EU:C:2006:543, paragraph 78); regarding the definition of the conditions for the acquisition and loss of nationality, judgment of 2 March 2010 in Rottmann (C‑135/08, EU:C:2010:104, paragraphs 39 and 41); as regards the Member States’ power to organise their social security schemes, judgments of 19 July 2012 in Reichel-Albert (C‑522/10, EU:C:2012:475, paragraph 38 and the case-law cited), and of 4 October 2012 in Commission vAustria (C‑75/11, EU:C:2012:605, paragraph 47 and the case-law cited); and, as regards the content of teaching and the organisation of the education systems of the Member States, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 23 and the case-law cited).

16 – See Iliopoulou, A., op. cit. According to that author, ‘the right of citizenship of the Union obliges the right of national citizenship to justify itself, to demonstrate its relevance and its proportionality. The State must review in the light of European standards its relations not only with the Community “abroad” but also with its nationals’ (p. 196).

17 – See, in particular, judgment of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 75 and the case-law cited).

18 – See Deen-Racsmány, Z., and Blekxtoon, R., ‘The Decline of the Nationality Exception in European Extradition?’, European Journal of Crime, Criminal Law and Criminal Justice, vol. 13/3, Koninklijke Brill NV, The Netherlands, 2005, p. 317.

19 – See Thouvenin, J.-M., ‘Le principe de non extradition des nationaux’, Droit international et nationalité, Colloque de Poitiers de la Société française pour le droit international, Pedone, Paris, 2012, p. 127, especially p. 133.

20 – That objective of combating impunity was taken into account by the Court, in particular, in its judgment of 27 May 2014 inSpasic (C‑129/14 PPU, EU:C:2014:586, paragraphs 58 and 72).

21 – See, in particular, Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 117 and the case-law cited), where the European Court of Human Rights states that it ‘does not lose sight of the fundamental aid of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension’.

22 – See Grotius, H., De jure belli ac pacis, Book II, Chap. XXI, sect. IV. Le droit de la guerre et de la paix: French translation by Barbeyrac, J., Amsterdam, Pierre de Coud, 1724, vol. 1, p. 639, especially p. 640.

23 – See, for example, the multilateral conventions cited on page 14 of the United Nations Final Report 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, namely the European Convention on Extradition, signed in Paris on 13 December 1957; the General Convention on Judicial Cooperation, signed in Tananarive on 12 September 1961; the Inter-American Convention on Extradition of 1981; the Economic Community of West African States Convention on Extradition, adopted in Abuha on 6 August 1994, and the London Scheme for Extradition within the Commonwealth.

24 – See p. 14 of the Final Report.

25 – Although the expression ‘obligation to prosecute’ is most often used, it would be more accurate to speak of an obligation to bring the matter before the authorities with the power to prosecute. Depending on the evidence, the fulfilment of that obligation may or may not lead to the initiation of a prosecution.

26 – As to the meaning of this expression, see footnote 3 of this Opinion.

27 – OJ 2007 C 303, p. 17.

28 – ‘The ECHR’.

29 – Reference is made to the judgments of the Eur. Court HR of 7 July 1989 in Soering v. United Kingdom (CE:ECHR:1989:0707JUD001403888) and of 17 December 1996 in Ahmed v. Austria (CE:ECHR:1996:1217JUD002596494).

30 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 67); 28 February 2008, Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 125 and the case-law cited); and 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

31 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116).

32 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

33 – See, in particular, Eur. Court HR, 17 January 2012, Othman (Abu Qatada) v. United Kingdom (CE:ECHR:2012:0117JUD000813909, § 187).

34 – See, in particular, Eur. Court HR, 30 October 1991, Vilvarajah and Others v. United Kingdom (CE:ECHR:1991:1030JUD001316387, § 107; 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 69); and 28 February 2008 Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 128 and the case-law cited).

35 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey, (CE:ECHR:2005:0204JUD004682799, § 72), and 28 February 2008, Saadi v. Italy, (CE:ECHR:2008:0228JUD003720106, § 131 and the case-law cited).

36 – Judgment of 5 April 2016 in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94).

The UK, the EU and a British Bill of Rights

SUMMARY and CONCLUSIONS OF THE HOUSE OF LORDS 12th REPORT .

FULL REPORT ACCESSIBLE HERE

SUMMARY

This inquiry was timed to coincide with the Government’s public consultation on a British Bill of Rights. The consultation was due to be launched in December last year, but in the event was delayed, and has still not been published. The Secretary of State for Justice’s evidence to us in the course of this inquiry was thus the first public statement in any detail of why the Government thinks a British Bill of Rights is necessary and of what it might contain.

This report assesses that statement, and considers the likely impact of a British Bill of Rights on three areas: on human rights litigation in national courts under the EU Charter of Fundamental Rights; on the UK’s EU legal obligations and international standing; and on the devolved settlements. A broad range of expert witnesses gave evidence to us, including two former Attorneys General, and our views are informed by that evidence.

The Secretary of State said in evidence that the Government’s two main objectives in introducing a British Bill of Rights were to restore national faith in human rights, and to give human rights greater national identity. The reforms the Secretary of State outlined were not extensive, however, and his evidence left us unsure why a British Bill of Rights was really necessary.

Doubts about the wisdom of introducing a British Bill of Rights grew with each evidence session we held. Many witnesses thought the current Human Rights Act incorporated the European Convention on Human Rights into national law in a peculiarly British way, and doubted more needed to be done to put human rights in a national context. Many thought that any restriction of the existing scope of rights under the Human Rights Act would lead to greater reliance on the EU Charter in national courts—a perverse consequence of a Bill of Rights that is intended to stamp national identity on human rights, particularly in view of the greater enforcement powers of the EU Charter. Many of our witnesses were deeply concerned about the effect of departing from the rights provided for in the Convention on the UK’s international standing, particularly among EU Member States, and on the UK’s ability to participate effectively in EU policies on fighting international crime.

We also heard a range of views on whether the Court of Justice of the European Union could be accused of extending the scope of EU law over national law through its judgments on the EU Charter. The weight of expert evidence was clear, and did not support such a conclusion.

The evidence we received from the devolved nations showed strong opposition to a British Bill of Rights and a belief that the repeal of the Human Rights Act would require the consent of the devolved legislatures before a Bill of Rights could come into force. Without this the Government might be left with an English Bill of Rights. The importance of the role of the Human Rights Act in Northern Ireland’s peace process was brought home to us in evidence we received from both north and south of the border.

Taken individually, the views expressed by witnesses to this inquiry raise serious questions over the feasibility and value of a British Bill of Rights of the sort described by the Secretary of State; taken together, they make a forceful case for the Government to think again before continuing with this policy. (….)

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

The Government’s case for a British Bill of Rights

  1. The British Bill of Rights as outlined by the Secretary of State appeared a far less ambitious proposal than the one outlined in the Conservative Party manifesto, which we set out at the beginning of this report. He made no mention, for example, of reversing the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society; nor of stopping serious criminals from using spurious human rights arguments to prevent deportation. (Paragraph 45)
  2. The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary. (Paragraph 46)
  3. If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy. As the former Lord Chief Justice Rt Hon Lord Woolf CH told us, the repeal of the Human Rights Act and its replacement by a Bill of Rights would be a constitutional change of the greatest significance. (Paragraph 47)
  4. In Chapter 8 we outline the evidence we received on the attitude to human rights in the devolved nations, which reveals a far more positive outlook than the view expressed by the Secretary of State. (Paragraph 48)
  5. We call on the Government to explain its grounds for concluding that, as the Secretary of State expressed it, the UK public sees human rights as a “foreign intervention”, and how a Bill of Rights would address this concern any more than the Human Rights Act does. Many of our witnesses considered that the Human Rights Act gave effect to the ECHR in national law in a way that respected Parliamentary sovereignty. The Welsh Government, for example, thought this a uniquely British approach. (Paragraph 49)

The relative scope of the ECHR and the EU Charter

  1. The main strength of domestic human rights protection under the European
    Convention on Human Rights is its scope. By virtue of section 6 of the
    Human Rights Act, every decision of every public body, including courts,
    must be compatible with the Convention. That is not the case with the EU
    Charter. The EU Charter applies only to public bodies making decisions
    within the scope of EU law. (Paragraph 54)

7 . The application of the EU Charter is narrower than that of the European Convention on Human Rights for two main reasons: not all of its provisions have direct effect, and so they cannot be relied on directly by individuals in national courts; and it applies to Member States “only when they are implementing Union law”. (Paragraph 71)

  1. Understanding the meaning of “only when they are implementing EU law” is central to assessing the scope of the EU Charter’s application in EU Member States. (Paragraph 72)
  1. We found Professor Dougan’s evidence particularly helpful, and draw the following conclusions from it. The expression “implementing Union law” can be equated to “acting within the scope of EU law”, the test used by the Court of Justice before the advent of the EU Charter. A Member State can be said to be acting within the scope of EU law when it either implements EU law through national legislation, or it acts on the basis of EU law, whether implemented or not, or it derogates from EU law. While the test for acting within the scope of EU law is case-specific, and often legally complex, Professor Dougan concluded that the Court of Justice’s approach had been relatively predictable, and surprisingly consistent. (Paragraph 73)
  2. We heard a range of views on this issue, but the weight of evidence we received does not support a conclusion that the Court of Justice has sought to expand the reach of EU law over Member States through its judgments on the scope of the EU Charter. (Paragraph 74)

11 . That said, the inherent difficulty in defining the scope of EU law has given rise to considerable litigation. We think it is likely to continue to do so in the future. (Paragraph 75)

  1. The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter. (Paragraph 80)
  2. The Government should give careful consideration to this likely consequence in deciding whether to introduce a British Bill of Rights. (Paragraph 81)

The enforcement of the ECHR and EU Charter in national law

14 . The common law would be unlikely to fill the gaps in human rights protection were the Human Rights Act to be replaced by legislation providing a lower level of protection. (Paragraph 83)

  1. The evidence we received is clear: the power of national courts under the European Communities Act to disapply a provision of national legislation that is inconsistent with the EU Charter is a more effective remedy than a declaration of incompatibility under the Human Rights Act. (Paragraph 95)
  2. A litigant can get compensatory damages for breach of EU law as of right; under the Human Rights Act damages are discretionary. (Paragraph 96)
  3. A challenge under the Human Rights Act may have to be litigated all the way to the European Court of Human Rights, in which case a significant delay will ensue. (Paragraph 97)

18 . We agree with the majority of our witnesses who said that the case of Delvigne is likely to lead to the UK ban on prisoner voting again being challenged, in relation to European Parliament elections. (Paragraph 113)

Would a British Bill of Rights be subject to EU law?

  1. The traditional view is that EU law has primacy over national law, and therefore that the EU Charter would have primacy over the Bill of Rights. (Paragraph 122)
  1. Several witnesses doubted this, however, citing instances in which courts
    have made it clear that there might not be an obligation to follow EU law
    if it conflicted with a significant constitutional principle of national law.
    (Paragraph 122)
  2. The model of the German Federal Constitutional Court, advocated by the
    Secretary of State as one our own Supreme Court could follow, appears ill-
    suited to the UK’s constitutional context. First, the German Basic Law gives
    primacy to EU law. Secondly, even though EU law can be overridden if
    inconsistent with the Basic Law, the German Federal Constitutional Court
    has yet to strike down EU legislation on this ground. Thirdly, the German
    Federal Constitutional Court has the power to strike down the legislation of
    the German Parliament if it considers it to be contrary to the Basic Law. We
    question whether this is a model the UK, with its constitutional principle of
    Parliamentary sovereignty, would want to follow. (Paragraph 123)

The impact of a British Bill of Rights on European Cooperation and the UK’s international standing

  1. We heard concerns that a British Bill of Rights that reduced the UK’s explicit commitment to the ECHR would undermine the UK’s standing within the Council of Europe and more widely. It could also put the effective operation of the European Convention on Human Rights, which requires all contracting States to respect its obligations, in jeopardy. The evidence of two former Attorneys General to this effect was compelling. (Paragraph 129)
  2. These concerns are heightened by the lack of clarity from the Government about whether the UK will remain a contracting State of the European Convention on Human Rights. We call on the Government to state explicitly whether or not it intends that the UK should remain a signatory to the ECHR. (Paragraph 130)
  3. We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States. (Paragraph 138)
  4. The evidence suggests that, were the UK to depart from the standards of human rights currently recognised within the EU, the system of mutual recognition which underpins EU Justice and Home Affairs cooperation would be hampered by legal arguments over its application to the UK. (Paragraph 144)
  5. We urge the Government not to introduce domestic human rights legislation that would jeopardise the UK’s participation in this important area of EU cooperation in the fight against international crime. (Paragraph 145)

The impact of repealing the Human Rights Act in the devolved nations

2 7 . Human rights are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland in a way that they are not under the UK’s constitution: acts of the devolved legislatures can, for example, be quashed by courts for non-compliance with the European Convention on Human Rights or the EU Charter. (Paragraph 180)

  1. The evidence we received from the Scottish and Welsh Governments demonstrates strong support for the role of the European Convention on Human Rights and the EU Charter to be preserved in those nations. The evidence we received from the Government of the Republic of Ireland and Professors Anthony and McCrudden went somewhat further in emphasising the vital role being played by the European Convention on Human Rights and the Human Rights Act in implementing the Good Friday Agreement. (Paragraph 181)
  2. The evidence demonstrates that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act (we did not receive evidence on this point from the National Assembly for Wales). Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional ter r itor y. ( Pa r ag r aph 182)
  3. The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”. If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform. (Paragraph 183)

 

EU-US cooperation in Justice and Home Affairs – an overview

ORIGINAL PUBLISHED ON THE EUROPEAN PARLIAMENT RESEARCH SERVICE (EPRS) SITE 

SUMMARY

The United States is the key partner of the European Union in the area of justice and home affairs (JHA), including in the fight against terrorism. While formal cooperation on JHA issues between the US and the EU goes back to the 1995 New Transatlantic Agenda, it is since 2001 in particular that cooperation has intensified. Today, and for the period up until 2020, the key areas of transatlantic efforts in the JHA field are personal data protection, counter-terrorism and countering violent extremism, migration and border controls, tracing of firearms and explosives, money laundering and terrorism financing, cybercrime, drugs and information exchange.

Regular dialogues at all levels, extensive operational cooperation and a series of legal agreements demonstrate the development of the transatlantic partnership on JHA. Assessments state that cooperation on law enforcement and counter-terrorism has led to hundreds of successful joint operations each year, and many foiled terrorist plots. Nevertheless, important challenges remain, in particular in light of the revelations of US mass surveillance activities and the resultant growth in EU concerns about US standards for data privacy.

The European Parliament is making use of its extended powers in the JHA field, by urging a high level of data protection as well as effective and non-discriminatory means of redress for EU citizens in the US over improper use of their personal data.

EU-US cooperation on JHA issues

Background

Formal EU-US cooperation on justice and home affairs (JHA) started in 1995, on the basis of the New Transatlantic Agenda and the Joint EU-US Action Plan, and was significantly reinforced after the 9/11 attacks.1 In particular, cooperation on cross-border law enforcement and intelligence, including counter-terrorism, has been one of the EU’s key priorities since 2001; today the relationship with the USA is the EU’s most advanced in this area. In particular, EU-US cooperation has been focused on the fight against terrorism and transnational crime, law enforcement and information exchange for law enforcement, protection of personal data, border management, visa and migration policies, and cybersecurity and cybercrime.

The US has increasingly recognised the EU as an actor in its own right (rather than the Member States) in the JHA area. Regular high-level political and security dialogue, extensive contacts, inter-agency operational cooperation, as well as a series of legal agreements between the US and the EU are evidence of this recognition, and of the evolution of the transatlantic partnership on JHA matters. Nevertheless, despite the continued emphasis on shared values, significant challenges to cooperation remain due to the different EU and US approaches. The revelations of US mass surveillance programmes and intelligence collection in Europe have affected transatlantic trust, and intensified EU concerns about data privacy and information exchange on the other side of the Atlantic. Other tensions have arisen in respect of US detainee policies, differences in terrorist designation lists in the US and EU, as well as border control and security measures.

Political dialogue on JHA and operational cooperation

The political dialogue on justice and home affairs issues, including counter-terrorism, is the EU’s most advanced with any third country, considering the number and level of contacts and the extensive policy cooperation. These links between officials on both sides of the Atlantic have increased since 2001 and, today, EU-US meetings take place regularly at both ministerial and senior official level:

  • Biannual ministerial meetings on justice and home affairs;
  • Biannual JHA informal high-level meetings (normally at the start of each six-month EU Council presidency);
  • Biannual political dialogues on terrorism between the US State Department and the European External Action Service (EEAS); and between the Commission and the US Department of Justice;2
  • Biannual dialogue of legal advisers of the EU, Member States and the US State Department, on counter-terrorism and international law;
  • Steering committee on countering violent extremism (several times a year);
  • Dialogue on terrorist financing;
  • High-level policy dialogue on border and transport security;
  • EU-US Working Group on Cybercrime and Cybersecurity;
  • Expert-level dialogue on protection of critical infrastructure.

EU-US cooperation at operational level is also highly developed, and is now a daily event for internal security and intelligence agencies, judicial authorities, treasury and trade authorities, border security and transport authorities. Law enforcement agencies share data and intelligence, and conduct joint operations. For example, joint operations in the counter-terrorism area have been run against identified terrorist networks, including coordinated freezing of financial assets and the surveillance and disruption of their means of online communication. According to Europol, in 2014 alone, more than 600 international operations were initiated in cooperation with US federal agencies leading to many operational successes in various crime areas, including against ‘darknet’ marketplaces, large-scale violation of intellectual property rights, currency counter-feiting, cybercrime and organised crime groups involved in the distribution of child sexual exploitation material. Of a yearly average of 500 operations initiated in cooperation with the US, around 50 are considered high-impact operations.

The mutual exchange of liaison officers has also advanced inter-agency and operational cooperation: two Europol liaison officers are posted in Washington DC, while US liaison officers from 11 federal agencies are posted to Europol and a permanent liaison prosecutor works at Eurojust.

Priority areas

In October 2009, EU and US ministers adopted the Washington Statement on enhancing transatlantic cooperation in the Area of Justice, Freedom and Security, which set out the principles and main areas of EU-US cooperation, such as mobility, law enforcement, counter-terrorism, judicial cooperation, fundamental freedoms, resilience and international cooperation for the following five years. The EU and US intended to build on the progress achieved up to that point (on customs cooperation, extradition and mutual assistance, passenger name records (PNR), and operational arrangements) and also take into account the EU’s multiannual priorities in the Area of Freedom, Justice and Security under the Stockholm Programme, adopted a few months later.

In June 2015, the EU-US ministerial meeting on Justice and Home Affairs endorsed the Riga Statement which reconfirms the principles of the Washington Statement, and outlines new priority areas for transatlantic cooperation during the next five years (as well as a set of concrete actions for each area): personal data protection, counter-terrorism and countering violent extremism (CVE), migration and border control, tracing of firearms and explosives, money laundering and terrorism financing, cybercrime, drugs and information exchange. In recent years, the threats from foreign terrorist fighters and organised crime have climbed high on the transatlantic agenda, with measures such as border security, visas, and information exchange being discussed to address these threats. In addition, the current Dutch Council Presidency has set out its priorities in this area, namely migration and counter-terrorism, as well as a special focus on cybersecurity and cybercrime (as well as human trafficking, victims’ rights and cooperation on forensic science).

Counter-terrorism and countering violent extremism (CVE)

Since 2001, transatlantic cooperation in the fight against terrorism has intensified. A series of agreements aimed at increasing cooperation and information-sharing for the purpose of law enforcement, including countering terrorism (see section below), have been concluded between the US and the EU, in addition to the bilateral cooperation and arrangements in place between the US and individual Member States. Several joint Declarations and Statements on counter-terrorism have been issued over the years, including the 2010 Declaration on counter-terrorism, whereby the EU, its Member States and the US announced their resolve to combat international terrorism within the rule of law, and set out the main areas and tools for cooperation in this respect. A specific joint interest has emerged in radicalisation and countering violent extremism since 2008-2009, and this has intensified in recent years. The Steering Committee on CVE meets several times a year and discusses issues such as terrorist travel, countering terrorists’ online activities, challenging extremist narratives, deradicalisation programmes in prisons, and cooperation on CVE activities in third countries. Inter-agency cooperation in this area has also developed between Europol and the US Department for Homeland Security (DHS); the US also recently suggested placing US agents in Europol to work on counter-narratives in the online environment. Foreign terrorist fighters has become a priority issue for EU-US counter-terrorism cooperation,3 as well as addressing terrorist financing. Cooperation on border security, aviation security, intelligence and information-sharing between law enforcement agencies, and counter-radicalisation efforts have become interlinked issues in the EU and US fight against terrorism.

On the other hand, several problematic topics have affected transatlantic cooperation on counter-terrorism, including differences between EU and US designated terrorist lists, data protection, and the US practices of extraordinary rendition and secret detention facilities. In addition, there have been tensions related to the US visa-free travel arrangements (Visa Waiver Program) which are not applied uniformly to all EU citizens.

Personal data protection

Despite the adoption in 2009 of common personal data protection principles by the US and the EU, personal data privacy continues to be one of the most important challenges in transatlantic cooperation, both with regard to the information-sharing agreements for law enforcement purposes – such as the EU-US Agreement on Passenger Name Records (PNR) and the TFTP/SWIFT agreement – and to the frameworks for commercial data transfers from the EU to US. Many in the EU, including the European Parliament, have raised serious concerns with regard to the protection of personal data in the US, claiming violations of EU citizens’ basic rights. The 2013 Snowden revelations of mass surveillance activities in Europe by the US National Security Agency have reinforced EU demands for stronger levels of data protection in the US, as well as for non-discrimination for EU citizens with regard to the means of redress available in the US. In this context, restoring trust in the transatlantic relationship has been underpinned by the revision of existing agreements regulating data transfers and the negotiations of new ones, such as the Umbrella Agreement.

Migration and border security

The EU and US have concluded several agreements on customs cooperation, including mutual recognition of air and maritime cargo security regimes. The US DHS also signed in 2009 a working arrangement with Frontex, the EU’s agency for border management cooperation, covering areas including risk assessment, sharing of best practices, exchange of information, training, and joint operations.

As regards passenger travel, the issue of complete visa-free travel for EU citizens to the US has been one of the sticking points in transatlantic relations. The US Visa Waiver Program (VWP) is in place for 23 EU Member States, granting their citizens short-term visa-free travel to the US.4 The VWP has recently been modified out of security concerns arising from the foreign fighter threat, a decision that raised serious concerns in the EU. Moreover, on a bilateral level, the US has sent official requests to five EU Member States to start negotiations on ‘pre-clearance agreements’, under which US Customs and Border Protection (CBP) officers deployed at the departure airport in the EU would determine whether passengers and their baggage or goods headed to the US may be admitted into the country. Currently, (non-Schengen area member) Ireland is the only EU Member State that has pre-clearance facilities for passengers bound for the US, and these have been in place since 2009. While the UK reportedly welcomed the US request, other EU Member States such as Sweden and the Netherlands raised concerns, principally related to whether the Schengen rules would allow such facilities, and over fundamental rights.

Moreover, the refugee crisis in the Mediterranean has pushed migration and refugee issues higher up the transatlantic agenda. Cooperation on migration issues continues in the framework of the EU-US Platform on Migration and Refugee issues, launched in 2010. The Platform’s action plan includes priority areas such as return and reintegration, biometrics, resettlement, trafficking in human beings, migration management capacity-building and labour migration. More recently, the possibility of enhancing US political and operational support to the EU was analysed, including EU cooperation with the US military in the Mediterranean.

Cybersecurity and cybercrime

In the area of cybercrime and cybersecurity, EU-US cooperation started in 2010, when the parties also established the EU-US Working Group on Cybersecurity and Cybercrime (WGCC). The EU-US WGCC addresses four main areas: cyber incident management, private-public partnerships, including for critical infrastructure protection, the fight against cybercrime, and raising awareness on cybersecurity. In 2011, the first joint cyber exercise was held (Cyber Atlantic 2011), aimed at improving coordination and more accurately identifying vulnerabilities. In 2014, the EU-US Cyber Dialogue was put in place, expanding cooperation and with the aim of addressing cross-cutting cyber issues, international developments in this field and foreign-policy-related cyber issues.5 The EU and US also cooperate in the framework of Europol and Eurojust on fighting cybercrime; a particular area for transatlantic cooperation is the fight against sexual abuse online, including the fight against child sexual exploitation.

EU-US legal agreements

The EU and US have concluded a series of binding agreements, including on arrangements for information sharing, on extradition and mutual legal assistance (MLA), on passenger name records (PNR), on container security, and on sharing financial data for the purpose of the US Terrorist Finance Tracking Programme (TFTP).6

Agreements in the field of police and judicial cooperation, and information sharing

Extradition and mutual legal assistance

In 2003, the EU and the US signed two treaties, on extradition and mutual legal assistance (MLA),7 which entered into force in 2010. The EU-wide extradition agreement with the US is considered to modernise the existing bilateral extradition agreements between the US and Member States. It streamlines exchange of information and documents, and sets rules for establishing the priority in cases of competing extradition requests. Under Article 13 of the extradition agreement, the US agreed not to impose/execute the death penalty on suspects extradited from the EU.

MLA agreements establish cooperation for the purpose of gathering and exchanging information in judicial investigations, and assistance in obtaining evidence located in another country. This also entails requests by law enforcement authorities to assist each other in cross-border criminal investigations or proceedings. The US-EU MLA agreement covers issues such as identification of bank information (providing US authorities with access to European financial information in criminal investigations), setting up joint investigative teams, video-conferencing, expedited transmission of requests, assistance to administrative authorities, use limitations, confidentiality, and grounds for refusal. The EU-US agreement does not replace the bilateral US MLAs with EU Member States (bilateral agreements are in force with all Member States except Bulgaria and Croatia), but supplements them.

US agreements with Europol and Eurojust

In 2001 and 2002 two US-Europol agreements were concluded which allow for the sharing of strategic and personal information in law enforcement. The negotiation of the agreement on personal information was particularly difficult, due to EU insistence that the agreement reflect EU standards on the protection of rights and rule of law. A US-Eurojust cooperation agreement was concluded in 2006. This was followed in 2007 by an EU-US agreement on the security of classified information, which sets some common standards so as to facilitate the exchange of classified information.

In February 2015, two other agreements were signed between Europol and US Customs, relating to foreign terrorist fighters and illegal immigration, issues now high on the agenda for cooperation. The first agreement associates the US CBP to Europol’s Focal Point Travellers, which is a tool created in 2013 for the collection, analysis and sharing of information related to the recruitment and travel of foreign terrorist fighters. The second agreement (Focal Point Check Point) aims at enhancing transatlantic cooperation against illegal immigration, targeting in particular organised crime groups that facilitate such immigration.

Tracking terrorist financing: the SWIFT/TFTP agreement

In August 2010, the US-EU Agreement on sharing SWIFT banking data (or financial messaging data) for the purpose of the US Treasury Department’s Terrorist Finance Tracking Program (TFTP) entered into force for a period of five years. In August 2015, the TFTP/SWIFT Agreement was automatically renewed for a period of one year.

Under the TFTP agreement, the US Treasury Department submits a reasoned request for specific financial and banking data to the SWIFT company (Society for Worldwide Interbank Financial Telecommunication) located in Belgium. A copy of the request is sent to Europol, which ensures the request conforms with the provisions of the agreement. If validated by Europol, SWIFT is bound to comply with the request and provide the data to the US. Article 9 of the TFTP Agreement obliges the US to share any information obtained in the framework of the TFTP deemed useful for the EU and its Member States in the prevention or investigation of terrorism-related activities. Under its Article 10, the EU Member States, Europol and Eurojust can request the US Treasury Department to search for specific information in the SWIFT data.8

Transfer of Passenger Name Records (PNR)

Following 9/11, the US adopted legislation requiring air carriers to give the US DHS access to passengers’ data prior to their flights’ departure, both leaving from and heading to the US. The EU and the US signed an agreement in 2004 to provide a legal basis for the transfer of PNR data from the EU to the US, which was later invalidated by the EU Court of Justice. A new PNR agreement was signed in 2007, but amid concerns about the protection of data and judicial redress for EU citizens in the US, the European Parliament postponed giving its consent to the agreement, eventually endorsing the opening of new negotiations with the US, launched in December 2010. This latest EU-US agreement on the use and transfer of PNR data to the US DHS ‘for the purpose of preventing, detecting, investigating and prosecuting terrorist offences and transnational crime’9 entered into force in July 2012 for a period of seven years. In exchange, the agreement provides that the DHS will ensure an appropriate level of data security, and includes provisions on the protection of sensitive data, on retention periods, on transparency and individual access to PNR data, on correction and rectification requests, as well as (administrative) redress for individuals. The Commission considers the agreement to be a useful tool in fighting terrorism and transnational crime, while giving adequate safeguards for EU citizens’ PNR data.

Protection of personal data

Safe Harbour and the new EU-US Privacy Shield agreement

The purpose of the Safe Harbour Framework (2000) was to protect EU citizens’ data if transferred to the US by American companies; it included a self-certification mechanism whereby US companies indicated their compliance with the Framework’s principles on personal data. As a result, such companies were allowed to transfer data from EU Member States to servers based in the US. In October 2015, the Court of Justice of the EU (CJEU) invalidated the Commission’s 2000 decision on the Safe Harbour arrangement which had recognised that the US ensured an adequate level of data protection, in accordance with European data protection legislation. The ECJ thus effectively ruled that the US failed this ‘adequacy test’.10

The replacement for Safe Harbour – the EU-US Privacy Shield – was agreed on 2 February 2016. The EU-US Privacy Shield will form the new framework for transatlantic data flows and will consist of a Commission decision finding that the new protections, which the US government has promised to put in place, are adequate for preserving the privacy of citizens who provide their data to US companies. The Commission points out that the US has given the EU, for the first time, binding assurances that access by public authorities for national security purposes will be subject to clear limitations, safeguards and oversight mechanisms, while EU citizens will benefit from judicial redress mechanisms in this area. The Commission has published the documents pertaining to the new arrangement and is awaiting the assessment of the Article 29 Data Protection Working Party. In the meantime, data transfers to the US should be based on alternative legal frameworks such as Standard Contractual Clauses and Binding Corporate Rules.

The EU-US ‘Umbrella Agreement’ on data exchanges for law enforcement

The EU-US ‘Umbrella Agreement‘ on data privacy and protection of data exchanged for the purpose of law enforcement was initialled in September 2015 (‘for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters’). Its negotiation began in March 2011. A condition for the agreement to be signed and formalised was the enactment by the US of the Judicial Redress Act (JRA), amending the 1974 US Privacy Act in response to EU demands for equal rights of access to civil remedies in the US for EU citizens concerning their personal data. The JRA was passed by the US Congress on 12 February 2016 and signed by the President on 24 February. This new legislation allows the US Department of Justice to designate foreign countries, or regional economic integration organisations, enabling their citizens to bring civil actions under the 1974 Privacy Act against certain US government agencies for the purpose of accessing, amending, or redressing unlawful disclosures of records transferred to the US in the framework of law enforcement. The JRA is also of relevance for the Privacy Shield agreement for data transfers for commercial purposes.

The Umbrella Agreement is intended to provide an overarching framework of rules governing transatlantic data exchange in the context of law enforcement investigations, and set high standards of personal data protection for future agreements in this field. However, the Umbrella Agreement will not provide a legal basis for actual transfers of data, which will still require the conclusion of specific agreements. To conclude the agreement, the Council has to adopt a decision on the basis of a Commission proposal and following the consent of the EP. However, the European Data Protection Supervisor proposed several changes to the text in a preliminary opinion on the Agreement. Furthermore, some Members of the European Parliament and the EP’s Legal Service have raised concerns about the agreement’s compatibility with primary EU law and fundamental rights.

Border controls and transport security

The EU-US air cargo security agreement

In June 2012, the Commission and the US Transportation Security Administration (TSA) signed a mutual recognition agreement of each other’s air cargo security regimes. It is meant to speed up transatlantic shipments and reduce costs for US and European cargo shippers. EU-US cooperation to strengthen border controls and transport security also played an important role in getting other states to agree the 2010 International Civil Aviation Organization declaration on aviation security.

Maritime cargo security

The air cargo security agreement was preceded in May 2012 by the EU-US mutual recognition agreement on maritime cargo security, whereby the EU and US recognise their respective ‘trusted shippers’ programmes – the US Customs-Trade Partnership against Terrorism (C-TPAT) and the EU’s Authorised Economic Operators (AEO) regime – and aimed at speeding up customs procedures for cargo scanning.

Customs cooperation between the EU and US is based on a 1997 agreement and further expanded through a 2004 agreement, which calls, among other things, for the extension to EU ports of the US Container Security Initiative (under which US customs officials, located in foreign ports, help screen maritime cargo containers bound for the US for explosives or weapons of mass destruction). In 2011, a Joint Statement on Supply Chain Security was issued, whereby the EU and US pledged to increase transatlantic cooperation related to customs security. Tensions in this area have emerged however over US legislation that sets a five-year goal, beyond which all containers bound for the US would be scanned for nuclear devices, which the EU finds unrealistic and costly.

An assessment of transatlantic cooperation and remaining challenges

Since 2001, the EU has seen enhancing cooperation with the USA in the JHA area as a key priority, in particular on law enforcement and counter-terrorism. The US has also proactively increased its involvement and supported cooperation with the EU as an actor in its own right in this field. According to reports by the EU Counter-terrorism Coordinator (in 2009 and 2011), there has been ‘no significant counter-terrorism investigation’ in Europe in which US support did not play a crucial role. Moreover, from the US point of view, law enforcement efforts that successfully averted and tracked terrorist plots were the result of enhanced border security, and advanced passenger information and PNR transfers.

In this context, through mutual learning that has influenced the practice of internal security on both sides of the Atlantic, a process of policy convergence has been observed by some experts. Some US initiatives and closer transatlantic cooperation seem to have influenced the EU (and also helped shape an EU interest in the field of counter-terrorism), visible for example in the proposals for an EU-wide agreement on exchanging PNR or the negotiation of such agreements with other third countries; similarly, US officials have recognised the role of the EU in informing some US policies (e.g. in ensuring redress for passengers’ complaints about airport screening). Conversely, other experts have pointed either to the ‘Americanisation’ of European policy or have argued that EU-US JHA cooperation has not been a relationship of equals, but mainly a ‘one-way street’ for providing the US with access to personal data and databases in the EU, without the US sharing its own databases.11

In general, important challenges remain for transatlantic cooperation, all the more complicated by the 2013 revelations of US mass surveillance activities and allegations of data collection in Europe, as well as due to major differences between the EU and US over strategies to counter the terrorist threat. Europeans have been concerned about American departure from the rule of law in its treatment of terrorist suspects, and pointed to major fundamental rights questions – in particular issues related to data protection and data privacy, posed by the operation of the information-sharing agreements concluded between the EU and the US (both the TFTP/SWIFT and PNR agreements have raised legal problems, including fair procedures, access to justice, fundamental rights, privacy and proportionality), as well as by US practices of extraordinary rendition and secret detention facilities overseas, and by US detainee policies.

Data privacy still constitutes the main bone of contention in the transatlantic relationship, due to different and seemingly irreconcilable legal systems and traditions in the EU and USA, but also stemming from their differing geostrategic positions. On this issue, some specialists argue that, despite having criticised the US for privileging security measures over adequate data privacy and data protection standards, the EU finds itself, paradoxically, in the process of adopting the same security-centred approach over privacy rights. For them, the EU would move closer to the US and would ‘shift … emphasis away from data privacy and toward protective anti-terrorist surveillance programmes’. Conversely, some American observers deplore the insistence of Europeans on protecting privacy, and underline that the intelligence gathered by the USA, using huge intelligence resources that Europeans could not expect to match, also defends Europeans. Data protection issues notwithstanding (including US complaints of cyber-cooperation with Europol being severely hindered by data protection concerns), at least as regards the transatlantic cyber-partnership, cooperation seems to be based on solid norms and converging objectives (fighting cybercrime, limiting malicious software and securing critical infrastructure, while promoting international standards for cyberspace).

In all areas, from counter-terrorism to border security and cybersecurity, the EU and the US seem still to be struggling to find the appropriate balance between strengthening security and facilitating legitimate transatlantic mobility and commerce.

Finally, a further difficulty stems from the EU institutional setting, with most actions in the field of the judiciary and police pertaining to the national level. In particular, most transatlantic counter-terrorism cooperation is assessed as still taking place at bilateral level, between the USA and European national authorities; moreover, US critics doubt the usefulness of cooperating with EU bodies given these good bilateral ties.

Evaluation of EU-US information-sharing agreements

TFTP/SWIFT: According to a report from the EU’s Counter-Terrorism Coordinator (November 2015), the EU-US TFTP has generated more than 14 500 intelligence leads since it came into force in 2010. In 2015, 7 514 intelligence leads of relevance were generated, 2 765 of which specifically related to foreign terrorist fighters. Four evaluations of the agreement have taken place and another was scheduled for late 2015. The reports from 2013 and 2014 underlined the value of the TFTP data, including data retained over several years, for counter-terrorism investigations both in the US and the EU. The reports give concrete examples of investigations using TFTP data, including the 2013 Boston Marathon bombings, threats to the 2012 London Olympics, and the 2011 attacks in Norway by Anders Breivik. The TFTP agreement is considered an important tool, providing timely and reliable information on activities associated with suspected terrorist acts, although other experts insist that more information is necessary in order to assess the effectiveness of the TFTP. The joint reviews conclude that Europol and EU Member States are increasingly aware of profiting from TFTP data through the reciprocity clauses of the agreement. A September 2015 assessment of Europol’s implementation of the TFTP also noted the increase in information received since December 2012 and the growing number of requests related to foreign fighters. While the Commission welcomed in 2014 more transparency from US authorities in sharing information, the Treasury Department underlined the need for more feedback from EU and national authorities after the US provides TFTP data.

EU-US PNR: A first joint review of the agreement (Commission and US DHS) was carried out in July 2013 and the next joint review was to take place in July 2015. The first review concluded that the PNR agreement served the purpose of supporting the fight against terrorism and other transnational crimes in various ways. However, some improvements were still needed on the DHS side, including, to ‘ensure reciprocity and pro-actively share individual PNRs and analytical information flowing from PNR data with EU Member States and, where appropriate, with Europol and Eurojust’. Another review performed by the DHS in June 2015 mentions that almost all the recommendations of the 2013 joint review have been implemented, and underlines that between October 2014 and February 2015, the DHS liaison officer submitted 122 names of suspected terrorists to Europol.

EU-US MLA: The MLA is being reviewed after five years; the EU proposed to finalise the joint review by June 2016. Both sides agree that the MLA works well, similarly to the EU-US extradition agreement, but several improvements could be made. On the US side, concerns relate to being overburdened and to the necessity of sharing information more quickly; to tackle this, the US pledged to increase resources and staff in the MLA department. On the EU side, the main concerns related to delays in execution, as well as the necessity to improve electronic means of communication in the MLA context and access to electronic evidence.

European Parliament

Since the entry into force of the Lisbon Treaty in 2009, the EP acts on a par with the Council in legislating in the fields of police and criminal cooperation. The Lisbon Treaty also increased the EP’s oversight of Europol (the EP together with the Council decides on regulations setting out Europol’s legal framework, while parliamentary scrutiny of Europol’s activities should be done by the EP together with national parliaments) and Eurojust. Importantly, the EP has to consent to international agreements concluded by the EU with third countries in this policy area. Parliament’s increasing oversight powers became evident when it voted down the TFTP/SWIFT agreement in February 2010, triggering new negotiations to take into account the EP’s concerns on data privacy and recommendations.12 Also in 2010, the EP postponed its vote on the 2007 EU-US PNR agreement until the Commission issued its global PNR strategy, after which the EP endorsed the opening of new negotiations with the US. The EP insisted however on a necessary and proportional exchange of data, not using PNR for data mining or profiling, and also expressed concerns about the period for retention of the data.

In light of the revelations of the US large-scale surveillance programmes, the EP adopted a resolution in March 2014 calling for the suspension of all data transfer agreements with the US (TFTP, PNR), the suspension of the Commission’s Safe Harbour Decision, as well as an in-depth assessment of the EU-US MLA and extradition agreements, and requesting the resumption of negotiations on the Umbrella Agreement, which should provide ‘effective and enforceable administrative and judicial remedies for all EU citizens in the US without any discrimination’ and a high level of protection of personal data, as a precondition for restoring trust in the transatlantic partnership. The EP also linked its consent to the Transatlantic Trade and Investment Partnership agreement to ending US mass surveillance activities and to adequate data privacy rights for EU citizens. In October 2015, the EP adopted a follow-up resolution reiterating its call for the suspension of the TFTP agreement and urging the Commission to assess the legal implications of the Court of Justice ruling of 6 October 2015 in the Schrems case vis-à-vis any agreements with third countries allowing for the transfer of personal data, including the TFTP Agreement, all PNR agreements and the EU-US Umbrella Agreement.

Main references

U.S.-EU Cooperation against Terrorism, Archick K., Congressional Research Service, RS22030, 2 March 2016.

Endnotes

1.Historically, the US maintained important bilateral relations with European states on law enforcement and followed with interest the beginning of cooperation on criminal matters among European states with the purpose of fighting organised crime, drug trafficking and terrorism – e.g. the 1976 Trevi Group, which included working parties on terrorism and internal security. By the end of the 1980s, criminal law enforcement issues figured regularly on the agenda of meetings between the US, some EU Member States and the Commission, with the US recognising the added value of the progressive ‘Europeanisation’ of measures in this field. Counter-terrorism issues have been part of the transatlantic dialogue since 1986. See ‘External relations of the EU with the US in counter-terrorism’ in The Evolving EU Counter-Terrorism Framework, O’Neill M., 2012, pp. 164-188.
2   The EU and USA also cooperate within multilateral frameworks, such as the Global Counterterrorism Forum (GCTF), where they promote international cooperation on counter-terrorism and countering violent extremism, as well as offer assistance to third countries for capacity building in the justice and rule of law areas.
3   See also ‘Foreign fighters’ – Member States’ responses and EU action in an international context, Bakowski P., Puccio L., EPRS Briefing, March 2016.
4   Bulgaria, Croatia, Cyprus, Poland and Romania are the five EU Member States not yet included in the US VWP.
5   ‘La coopération transatlantique en matière de cybersécurité’, Joubert V., in Vers un partenariat transatlantique de l’Union européenne, Auvret-Finck, J. (Ed.), Larcier, 2015, pp. 271-288.
6   U.S.-EU Cooperation against Terrorism, Archick K., Congressional Research Service, RS22030, 1 December 2014.
7   Handbook on the practical application of the EU-U.S. Mutual Legal Assistance and Extradition Agreements, Council of the EU, 8024/11, March 2011.
8   There are still calls for the establishment of a European TFTP programme, which the Commission had assessed in 2013 as very costly and not bringing significant added value to the current situation.
9   The PNR agreement is restricted to those transnational crimes punishable by a sentence of imprisonment of three years or more – as demanded by the European Parliament.
10   Court of Justice ruling of 6 October 2015 in the Schrems case (C-362/14). Essentially, the Court ruled that: i) the generalised transfer of data under the Safe Harbour scheme without determining the limitation of access of US public authorities to the data was ‘compromising the essence of the fundamental right to respect for private life’;
and ii) the lack of access to legal remedies for individuals concerning their personal data was in breach of their fundamental right to effective judicial protection. See also The CJEU’s Schrems ruling on the Safe Harbour Decision, Monteleone S., Puccio L., EPRS, October 2015.
11 Experts also point to US demands for access to criminal records across the EU, which they deem controversial.
12 Parliamentary oversight of counter-terrorism policies’, Oikarinen J., in Counter-terrorism: International law and practice, Salinas de Frías A. M., Samuel K., White N.D. (Eds.), Oxford, 2012, pp. 936-964.

Disclaimer and Copyright The content of this document is the sole responsibility of the author and any opinions expressed therein do not necessarily represent the official position of the European Parliament. It is addressed to the Members and staff of the EP for their parliamentary work. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © European Union, 2016.

 

The fight against terrorism in Europe What the EU does (not do) and what it should do (*)

FondazioneBasso

(*) This was the title of a discussion seminar organised by Fondazione Lelio e Lisli Basso on April 18, 2016, attended by leading criminal judicial cooperation experts as well as by Emilio DE CAPITANI, Executive Director of the FREE Group,at the end of which the following document was drafted, which we submit to the attention of all concerned and in particular those responsible for policyin this sector.

A true EU criminal justice area: proposals for discussion

The Lisbon Treaty has profoundly changed “criminal justice cooperation” in the European Union.First, it provides for the introduction of legislative harmonization measures in the spheres of substantive and procedural law, through directives to be approved by means of ordinary legislative procedures.This creates the necessary legal bases for the extension of Eurojustcompetences,well beyond its present remit,and the creation of a European Public Prosecutor’s Office, whose responsibilities would initially be limited to the prevention of fraud against the EU budget, but which later could be extended to other areas, first and foremost the fight against terrorism and organized crime.

These innovations were not so much due to the initiativeof enlightened lawmakers but rather decades of cooperation between judicial bodies of member countries (starting with Council of Europeconventions), the trialling of horizontal forms of joint work (from the European Judicial Network to the practical implementation of Eurojust), and the obvious fact that in a globalized world,crime – financial, organized and terrorist – knows no boundaries, especially in Europe, which has become a single economic area.

This evolution has been followed by major European legal experts, who have supported this long and continuously evolving process.

However, the innovations introduced by the Lisbon Treaty, which entered into force more than six years ago, have remained largely unimplemented. After a first phase, between 2010 and 2012, positively characterized by the adoption of a number of important directives on the harmonization of a uniform set of minimum rights for the defence in criminal proceedings (the necessary prerequisites for building mutual trust among diverse systems and mutual recognition of decisions), legislative efforts seem to have run aground against the great difficulties of the Council, the inertia of the European Parliament and the substantial paralysis of Commission proposals. The only legislative measure of any importance came into force in 2014, the Directive on the European Investigation Order (EU Directive 2014/41 of 3 April 2014), the result of a proposal made by some Member States dating back to 2010,to be transposed, in the not too distant future, by May 2017.

Meanwhile the Commission’s proposals for a new directive on offenses against the Union’s financial interests (so-called PIF Directive) and regulations for the reform of Eurojust and for the introduction of a European Anti-Fraud Public Ministry have for years been lying on the Council’s table after extenuating negotiations and after undergoing a series of modifications that have greatly weakened the original scheme.

With regard to the anti-fraud prosecutor, the text currently under discussion, if approved, does not provide for a truly European public prosecutor’s office, ie a European judicial organ, but only what, in substance, is just another intergovernmental agency, something quite different from the common organ of investigation and prosecution envisioned in Article 86 of the Treaty. Also the proposal for a Eurojust Regulation (a timid rewriting of existing provisions rather than any real consideration of the new possibilities offered by article 85 of the TFEU), at present languishes in an apparent dead end. But what is most striking is that not even in the field of minimum criminal legislation for the protection of the Union’s financial interests, that is to say the defence of public assets that entirely belong to the Union and not to single member states, have we succeeded, in almost four years of negotiations, in reaching agreement in the Council and Parliament. The risk is that, at the end of the negotiations, we shall end up with a diluted version not only of the original 2012 proposal but also the 1995 Convention that the directive is meant to replace. This would represent the first time that a step back has been taken in the process of forming European criminal law and, to some extent, of European integration itself.

Another very serious matter is what appears to be the Council’s substantial closure towards any real discussions of major policy guidelines for the area of freedom, security and justice, with a view to drafting a general document that can replace the Stockholm Program, which expired in December 2014, a document which can continue the course set by the Tampere and Hague programs of 1999 and 2004 respectively. This document, expressly provided for in Article 68 TFEU, has, for nearly two decades, constituted “the” common agenda in this sector for both European and national institutions, something which can be used to set individual measures into a more general framework, and offer future prospects. Its absence seems to be a clear indication of the European Council’s failure to exercise the prerogatives assigned to it by the Treaty itself.

We believe we need to combat this inertia.

The recent dramatic events in France and Belgium have shown, though this was already more than clear, that serious forms of crime, and among them of course terrorism, take advantage of the freedom of movement between our countries. And it is common knowledge that the sort of terrorism we must fight today is structurally and operationally different from the forms that we have known up to now. It operates beyond national borders and beyond European confines, and to imagine that it can be defeated by national criminal policies is a dangerous illusion.

According to the good intentions that have been expressed on numerous occasions, European leaders are motivated by a desire to achieve a higher level of cooperation in criminal matters. However, fine words do not seem to be have been followed by facts.

What is primarily missing from discussions is a frank, empirical and objective assessment of the state of implementation and operation (and especially non-operation) of existing cooperation instruments. We often hear of the difficulties which have prevented effective, trustworthy and complete exchanges between authorities of different states as regards criminal reports and investigations. National authorities do not always cooperate effectively, as would be expected from the principle of mutual trust. Even the flow of information to Eurojust seems to be insufficient, in the eyes of many national authorities, and accompanied by reticence. We must put an end to these nationalistic jealousies. If a crime has transnational characteristics, an answer must be found at transnational level. This is particularly evident with regard to terrorism, and what is certain is that it will not be the introduction of barriers at borders or the presence of police on trains to stop terrorists.

We are asking for this verification to take place, with the support of the many judges and prosecutors that have already cooperated in good faith, and of the academies and universities that have greatly contributed to the development of a common culture.

Negotiations on the European Public Prosecutor’s Office and the PIF Directive are proceeding wearily and contradictorily, based, moreover, on texts that by no means reflect the proclaimed desire to establish a body that will give added value to investigations in this area. They must be finalised within a reasonable time so that the future Public Prosecutor can have effective and efficacious powers of investigation, overcoming neo-nationalist instincts and obstacles.

We believe that the Commission urgently needs to put forward a proposal for a new “facilitation” directive on fighting criminal activities, which, by taking advantage of situations of war and extreme poverty, speculate on migrants and refugees. There have been too many deaths in the Mediterranean and the Balkans. The absence of an effective policy to combat crimes constitutes a black hole in the Union’s policies.

An answer must be found to the annulment of the Directive on data retention by the Court of Justice, Digital Rights Ireland Ltd(C-293/12)of 8 April 2014, to which no response has so far been given. This has resulted in the absence of common rules, so that each country has returned their own national regulations, which are very different, creating uncertainty and confusion in requests for and exchanges of data.

We hope that the framework of European tools to halt the proceeds of criminal activity may finally be completed through the presentation of the Commission proposals on mutual recognition of confiscation orders, including those that are not conviction based.

The European Union must not give in to the temptation of emergency measures for criminal activities, which may lower the level of freedom and security of its citizens. It should instead focus on harmonization and cooperation, so as to raise the overall efficiency of the system while enhancing individual rights.

Contributing to the drafting of this paper were Ignazio Patrone, Lorenzo Salazar, Eugenio Selvaggi and AndreaVenegoni, judges with extensive experience at European level.

The Orbanisation of EU asylum law: the latest EU asylum proposals

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system.

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn.

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports.

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways.

First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’.

Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months.

Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey.

Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010.

Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal).

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration.

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission’s asylum proposals – to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, thecurrent law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can’t relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany.

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.